An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-206
                       NORTH CAROLINA COURT OF APPEALS
                              Filed:    5 August 2014
IN THE MATTER OF:
                                               Mitchell County
                                               No. 09 J 32
K.B.G.


      Appeal by respondent from order entered 4 November 2013 by

Judge Alexander Lyerly in Mitchell County District Court.                      Heard

in the Court of Appeals 8 July 2014.

      Hal G. Harrison and R. Ben Harrison for petitioner Mitchell
      County Department of Social Services.

      Michael N. Tousey for guardian ad litem.

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

      ERVIN, Judge.

      Respondent-Mother        Michelle        B.   appeals      from   an     order

terminating her parental rights in her daughter, K.B.G.1                          On

appeal, Respondent-Mother contends that the trial court erred by

considering new evidence on remand from a prior decision of this

Court without affording her an equivalent opportunity to present

additional     evidence,     by    making      findings     of   fact   that    lack

adequate    evidentiary      support     and    fail   to    support    the    trial

      1
      K.B.G. will be referred to throughout the remainder of this
opinion as “Kayla,” a pseudonym used for ease of reading and to
protect the juvenile’s privacy.
                                            -2-
court’s determination that Respondent-Mother’s parental rights

in Kayla were subject to termination for neglect, and by failing

to make findings of fact relating to Respondent-Mother’s fitness

to    parent    Kayla    as    of   the   date    of   the   termination         hearing.

After careful consideration of Respondent-Mother’s challenges to

the    trial     court’s       order   in     light    of    the   record        and   the

applicable law, we conclude that the trial court’s order should

be affirmed.

                                I. Factual Background

       On 2 July 2009, the Mitchell County Department of Social

Services filed a petition alleging that Kayla was a neglected

and    dependent        juvenile,      with    the     primary     basis    for        this

contention           being     continuing         domestic       violence         between

Respondent-Mother and Respondent-Father Daron G.                      On 20 August

2009, the trial court entered an order adjudicating Kayla to be

a neglected and dependent juvenile.                    On 17 December 2010, DSS

filed a motion to terminate Respondent-Mother’s and Respondent-

Father’s parental rights in Kayla on the grounds of neglect as

authorized by N.C. Gen. Stat. § 7B-1111(a)(1).                        On 16 August

2011, the trial court entered an order terminating Respondent-

Mother’s       and    Respondent-Father’s          parental      rights     in     Kayla.

Respondent-Mother            and Respondent-Father noted appeals to this

Court from the trial court’s termination order.                     On 1 May 2012,
                                     -3-
this Court filed an unpublished decision reversing the trial

court’s termination order on the grounds that the trial court

had   failed   to    make   “specific,     ultimate      findings     of    fact

establishing that [Kayla] was a neglected juvenile” and had,

instead,   made     findings   of   fact   that   were     “nearly    verbatim

recitations    of   the   allegations   contained     in   DSS’s     motion   to

terminate [Respondent-Mother’s and Respondent-Father’s] parental

rights,” and remanding this case to the Mitchell County District

Court “for proper findings of fact and conclusions of law which

are supported by those findings of fact.”             In re K.B.G., COA11-

1495, 201 N.C. App. Lexis 565, at *6-9 (2012).

      A remand hearing, at which the trial court declined to hear

or receive new evidence, was held on 1 October 2012.                       On 30

October 2012, the trial court entered a remand order terminating

Respondent-Mother’s and Respondent-Father’s parental rights in

Kayla on the grounds of neglect as authorized N.C. Gen. Stat. §

7B–1111(a)(1) and on the grounds that they had left Kayla in

foster care for at least twelve months without making reasonable

progress in correcting the conditions that led to her removal

from the home as authorized by N.C. Gen. Stat. § 7B-1111(a)(2).

Respondent-Mother noted an appeal to this Court from the trial
                                             -4-
court’s    remand       order.2         On    20        August      2013,     we    filed     an

unpublished opinion reversing the trial court’s remand order and

remanding this case to the Mitchell County District Court for

the entry of a new order containing adequate findings of fact

and conclusions of law on the grounds that the trial court had

erred by determining that Respondent-Mother’s parental rights in

Kayla were subject to termination pursuant to N.C. Gen. Stat. §

7B–1111(a)(2) given that DSS had failed to allege this ground

for termination in its petition, and that the trial court had

failed to make “specific, ultimate findings of fact to support

its   conclusion        that     grounds     existed          to    terminate      respondent

mother’s       parental    rights       based      on       neglect.”       In     re   K.B.G.,

COA13-160, 2013 N.C. App. Lexis 868, at *16 (2013).

      A second hearing on remand, at which the trial court again

refused to hear or receive any additional evidence, was held on

4 November 2013.           On the same date, the trial court entered a

second remand order concluding that Respondent-Mother’s parental

rights    in    Kayla     were    subject       to      termination      for       neglect    as

authorized       by     N.C.     Gen.     Stat.         §     7B-1111(a)(1)         and     that

Respondent-Mother’s            parental         rights         in     Kayla        should    be




      2
      As a result of the fact that he did not appeal the trial
court’s remand order, the entry of that order effectively
terminated Respondent-Father’s parental rights in Kayla.
                                            -5-
terminated.         Respondent-Mother noted an appeal to this Court

from the trial court’s second remand order.3

                         II. Substantive Legal Analysis

              A. Consideration of New Evidence on Remand

     In her first challenge to the trial court’s second remand

order, Respondent-Mother argues that the trial court erred by

considering    new       evidence     on    remand   without      allowing          her    to

present     additional         evidence      herself.           More     specifically,

Respondent-Mother claims that, after informing the parties that

it would base its order solely upon the evidence presented at

the 12 July 2011 hearing, the trial court took judicial notice

of   the    entire       court       file    relating      to     this     proceeding,

effectively    depriving        her    of   the    opportunity      to    contest         the

consideration       of    portions     of    the   court     file      that    were       not

appropriately subject to judicial notice or were incorporated

into the court file after the 12 July 2011 evidentiary hearing.

Respondent-Mother         is   not    entitled     to   relief      from      the    trial

court’s second remand order on the basis of this contention.

     The first problem with this aspect of Respondent-Mother’s

challenge to the trial court’s second remand order is that the

trial     court’s    initial      termination        order      reflects      that        DSS
     3
      A more detailed description of the underlying factual
background is contained in the opinion in which we addressed
Respondent-Mother’s challenge to the trial court’s first remand
order. In re K.B.G., 2013 N.C. App. Lexis 868.
                                      -6-
“offered Exhibits Numbers 1-14, together with the entire Court

File,” at the 12 July 2011 hearing and that “[t]hese Exhibits

were received without objection.”           In other words, contrary to

Respondent-Mother’s contention, the materials in the court file

were,    in    fact,     admitted    into   evidence    at    the    original

evidentiary hearing.        As a result, the trial court did not err

to the extent that it relied on information contained in the

court file as of 12 July 2011 given that the file as of that

date had been admitted into evidence.

       Admittedly, any decision by the trial court to consider

information developed and placed in the court file after 12 July

2011 would have been problematic.           In support of her contention

that    the   trial    court’s   decision   was   affected   by   information

developed and included in the court file after 12 July 2011,

Respondent-Mother points to the trial court’s finding that:

              [T]he Court finds:   (1) the juvenile is now
              well over five years of age and has spent
              over four of those years in foster care and
              DSS custody; (2) that, over the years, the
              juvenile has established a strong bond with
              her foster family, and said foster family
              strongly desires to adopt the juvenile; . .
              . [and] (5) that the overwhelming weight of
              the evidence firmly establishes that a
              strong and loving bond exists between the
              juvenile   and   her   prospective  adoptive
              parents[.]   Thus, the Court finds that her
              proposed adoption by the current foster
              parents is in the best interest and welfare
              of the juvenile[.]
                                                  -7-
We are not persuaded by the language contained in the finding of

fact upon which Respondent-Mother relies that the trial court

did, in fact, consider, much less rely upon, such post-12 July

2011 evidence.

       The    “presumption           in     a    bench     trial    is    that     ‘the   judge

disregarded any incompetent evidence that may have been admitted

unless       it        affirmatively            appears     that     he     was    influenced

thereby,’” In re H.L.A.D., 184 N.C. App. 381, 395, 646 S.E.2d

425, 435 (2007) (quoting In re L.C., 181 N.C. App. 278, 284, 638

S.E.2d 638, 642 (2007)), aff’d, 362 N.C. 170, 655 S.E.2d 712

(2008), with Respondent-Mother “bear[ing] the burden of showing

that   the    trial        court      relied       on    the    incompetent       evidence   in

making its findings.”                  Id. (citing In re Huff, 140 N.C. App.

288, 301, 536 S.E.2d 838, 846 (2000), disc. review denied, 353

N.C. 374, 547 S.E.2d 9 (2001)).                            Respondent-Mother         has not,

however,      cited       us    to    any       specific       indication    in    the    second

remand order that the trial court relied upon evidence derived

from portions of the court file developed and filed after 12

July 2011 in making its “best interests” determination.                                      The

trial court’s “best interests” finding, upon which Respondent-

Mother generally relies in support of this argument, appears to

rest   on    the       testimony       of   Will        Winters,    a    social    worker    who

testified         at    the    12    July   2011        hearing    that    Kayla    was   “well
                                       -8-
bonded”    to    her    foster   parents     and    foster   brother     and   that

Kayla’s foster family had “welcomed [Kayla] as just a member of

their family,” updated to reflect Kayla’s age and the length of

time that she had spent in foster care.               As a result, given that

Respondent-Mother has failed to show that the trial court relied

upon evidence contained in that portion of the court file that

was developed and filed after the conclusion of the 12 July 2011

hearing in its second remand order, she is not entitled to an

award of appellate relief from that order on the basis of this

contention.

  B. Evidentiary Support for the Trial Court’s Factual Findings

      Secondly, Respondent-Mother argues that the trial court’s

findings of fact to the effect that Respondent-Mother (1) failed

to   comply      with   her   case   plan;    (2)   continued    to     engage    in

domestic violence with the father; and (3) continued to abuse

alcohol       lacked     sufficient       evidentiary        support.          More

specifically,       Respondent-Mother        contends   that    the     undisputed

record evidence establishes that the findings in earlier orders

indicate that she was complying with her case plan, that she

would not have been allowed to have unsupervised visitation or a

trial placement if she had been out of compliance with her case

plan,     that    she   had   submitted      documentary      support    for     her

contention that she was complying with her case plan, that she
                                       -9-
was not culpable in and had no responsibility for the incidents

of domestic violence in which she had been involved, that no

continuing domestic violence was occurring, and that she was not

continuing to abuse alcohol, so that there was no basis for the

trial   court’s    ultimate      determination    that     Respondent-Mother’s

parental rights in Kayla should be terminated on the grounds of

neglect.      We     do        not   find    Respondent-Mother’s       argument

persuasive.

    “The   standard       of    appellate    review   is   whether    the   trial

court’s findings of fact are supported by clear, cogent, and

convincing evidence and whether the findings of fact support the

conclusions of law.”           In re D.J.D., 171 N.C. App. 230, 238, 615

S.E.2d 26, 32 (2005) (citing Huff, 140 N.C. App. at 291, 536

S.E.2d at 840).     A trial court may treat a properly admitted DSS

report as evidence and incorporate the contents of that report

into its order so long as the trial court does not use the DSS

report as a substitute for its own independent review.                      In re

K.S., 183 N.C. App. 315, 324, 646 S.E.2d 541, 546 (2007); In re

D.L., 166 N.C. App. 574, 582–83, 603 S.E.2d 376, 382 (2004).

After   carefully    reviewing       the    record,   we    believe   that    the

challenged factual findings have ample evidentiary support and

amply support the trial court’s determination that Respondent-
                                           -10-
Mother’s parental rights in Kayla were subject to termination

for neglect pursuant to N.C. Gen. Stat. § 7B-1111(a)(1).

      Although the record contains prior orders indicating that

Respondent-Mother was complying with her case plan, other orders

entered prior to the filing of the termination petition, such as

the   order     authorizing         DSS    to      cease       attempting       to   reunify

Respondent-Mother with Kayla, contain findings of fact to the

effect   that    there       had    been     “no      substantial      compliance”      with

Respondent-Mother’s          case     plan      and     that      Respondent-Mother      had

“failed to obtain all Court ordered treatment, evaluations, and

[has] been in non-compliance with the DSS plan[.]”                               Similarly,

reports presented by DSS and Kayla’s                        guardian ad litem           note

Respondent-Mother’s refusal “to communicate with [Intensive In

Home] Supervisor or to work with case worker or to visit with

her child” and her sporadic attendance at counseling sessions.

Finally,   the       trial    court       was      not,    contrary       to    Respondent-

Mother’s      contention,          required        to     treat     the     mental    health

assessment upon which she places such emphasis in her brief as

sufficient compliance with the requirement in her case plan that

she   obtain     a    mental        health      evaluation          given      the   limited

information provided in that assessment or to treat the letters

from four mental health providers to the effect that they were

unable to provide the required evaluation as conclusive given
                                           -11-
Respondent-Father’s         ability       to    obtain        an    adequate         assessment

during the same period of time.                      In essence, the prior orders

and other evidence contained in the present record demonstrate

that,    after    a    period     in    which        Respondent-Mother               was    making

efforts    to    comply    with     her    case       plan,     she      faltered          in    that

process and never fully complied with her case plan.                                            As a

result,    the     trial    court       did     not       err      by    determining             that

Respondent-Mother had failed to comply with her case plan.

       Secondly, the trial court’s unchallenged findings of fact

reflect that (1) Respondent-Mother continued to be involved in

incidents of domestic violence with Respondent-Father and (2)

that    Respondent-Mother         engaged       in    a    “pattern           of   refusing        to

testify”       against     Respondent-Father               following           the        acts     of

domestic violence that he perpetrated against her.                                 In addition,

reports submitted by Kayla’s guardian ad litem indicated that

Respondent-Mother had a tendency to “protect” Respondent-Father

from     the    effects     of    his     violent         conduct        and       stated        that

Respondent-Mother         “is     not     showing      motivation             to     choose       the

safety    of     her   daughter        over     the       violent        relationship            with

[Respondent-Father].”             In fact, a prior order contained in the

court    file    noted     that    Respondent-Father               still       had    a    key     to

Respondent-Mother’s         home.          As    a    result,           the    trial       court’s

findings       concerning        the    existence          of      continuing             domestic
                                       -12-
violence have adequate evidentiary support and establish that

Respondent-Mother, without having instigated the actions                        that

Respondent-Father       took   against    her,     failed    to    take     adequate

steps to prevent such acts of domestic violence from occurring

or to respond to such acts of domestic violence following their

occurrence in a manner which would have provided protection to

herself and Kayla.

       Finally, the record is replete with evidence                       tending to

show    that     Respondent-Mother       continued      to        abuse     alcohol.

According to multiple DSS reports, Respondent-“Mother need[ed]

to become alcohol free.”         In addition, Respondent-Mother’s long-

term   alcohol    abuse    and   her     relapse     into    excessive       alcohol

consumption      were     mentioned      in    her     clinical       evaluation.

Similarly, a report submitted by Kayla’s guardian ad litem noted

that Respondent-Mother “admits to continuing to abuse alcohol.”

Moreover, the trial court found in a prior order that alcohol

was discovered in Respondent-Mother’s home on 7 September 2010,

when an incident of domestic violence between Respondent-Father

and Respondent-Mother occurred.               Finally, despite Respondent-

Mother’s contention to the contrary, the record contains ample

evidence tending to show that Respondent-Mother’s alcohol abuse

could have an adverse impact on Kayla.                For example, according

to a report submitted by Kayla’s guardian ad litem, Respondent-
                                      -13-
Mother      and    Respondent-Father     both   stated       “that       the   worst

domestic violence has occurred when [Respondent-Mother] has been

drinking.”        Thus, the record contains ample evidentiary support

for   the     trial   court’s   findings     relating    to       the    effect   of

Respondent-Mother’s       alcohol   consumption.        As    a    result,     given

that the record fully supports the challenged findings of fact

discussed in Respondent-Mother’s brief and given that the trial

court’s       findings   concerning      Respondent-Mother’s            failure   to

comply with her case plan, involvement in domestic violence, and

continued consumption of alcohol provide ample support for the

trial court’s finding that Respondent-Mother’s parental rights

in Kayla were subject to termination for neglect as authorized

by N.C. Gen. Stat. § 7B-1111(a)(1), we conclude that Respondent-

Mother is not entitled to relief from the trial court’s second

remand order on the basis of the contention discussed in this

section of our opinion.

                           C. Fitness to Parent

      Finally, Respondent-Mother contends that the trial court’s

findings of fact did not suffice to support termination of her

parental rights in Kayla for neglect as authorized by N.C. Gen.

Stat.     §    7B-1111(a)(1).       In    support   of       this       contention,

Respondent-Mother argues that, even if the findings that the

trial court actually made had adequate evidentiary support, the
                                            -14-
trial court was not entitled to terminate her parental rights in

Kayla on the basis of neglect given the absence of sufficient

findings establishing that she lacked the current ability to

parent    her     daughter.           We   are   not    persuaded     by    Respondent-

Mother’s argument.

    As we have already noted, the trial court concluded that

Respondent-Mother’s        parental         rights     in    Kayla   were   subject    to

termination for neglect as authorized by N.C. Gen. Stat. § 7B-

1111(a)(1).       A “neglected juvenile” is one

            who   does    not   receive    proper   care,
            supervision,    or   discipline    from   the
            juvenile’s parent, guardian, custodian, or
            caretaker; or who has been abandoned; or who
            is not provided necessary medical care; or
            who lives in an environment injurious to the
            juvenile’s welfare; or who has been placed
            for care or adoption in violation of law.

N.C. Gen. Stat. § 7B-101(15).                “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).                             In an

instance, such as this one, in which a child has been removed

from the parent’s custody before the termination hearing and the

petitioner presents evidence of prior neglect in support of its

request for termination of the parent’s parental rights, “[t]he

trial     court     must       also    consider        any    evidence      of   changed

conditions in light of the evidence of prior neglect and the
                                           -15-
probability of a repetition of neglect.”                        In re Ballard, 311

N.C.      708,    715,       319   S.E.2d     227,      232    (1984).         In     such

circumstances,           the       neglect        determination         “must[,]        of

necessity[,] be predictive in nature, as the trial court must

assess whether there is a substantial risk of future abuse or

neglect of a child based on the historical facts of the case.”

In   re    McLean,     135     N.C.    App.   387,    396,    521     S.E.2d   121,    127

(1999).     In the event that the trial court determines that there

is a reasonable probability that the neglect that the juvenile

previously suffered will recur, the trial court has adequately

addressed        the   “current       fitness”    issue      raised    in   Respondent-

Mother’s brief.

       In its second remand order, the trial court found as fact

that:      (1) Respondent-Mother failed to comply with her case

plan,      (2)     domestic        abuse      between        Respondent-Mother         and

Respondent-Father was a continuing problem, and (3) Respondent-

Mother continued to abuse alcohol.                   In addition, the trial court

found that:

             supervised visitations between [Kayla] and
             Respondent[-Mother], have had a negative
             behavioral    impact    upon   the    child.
             Specifically, the Court finds that prior to,
             and shortly after her removal from the care
             of   Respondent[-Mother]   and  [Respondent-
             Father], the juvenile had exhibited defiance
             and other behavioral problems. Further, the
             Court   finds   that    during  periods   of
             supervised   visitation   with  Respondent[-
                                      -16-
           Mother],    these   pre-removal    behavioral
           problems have again manifested themselves,
           in that, the child has often emotionally
           shut down and lain [sic] stiff on the floor.

After noting that Respondent-Mother often missed her supervised

visits with the juvenile, the trial court found that:

           Ultimately, the Court finds the testimony of
           [Mr.] Winters to be very credible, and
           attaches    significant    weight    to  his
           testimony.   Based on said testimony by the
           social worker, together with the entire
           Court    file,   the    Court    finds  that
           Respondent[-Mother]    has    neglected  the
           juvenile (as defined by N.C. Gen. Stat. §
           7B-101(15)), that she has continued to
           neglect the juvenile, and there is a
           likelihood of future neglect if the juvenile
           is returned to Respondent-[Mother].

Finally, the trial court found as a fact “that the meager and

half-hearted    efforts     undertaken        by   Respondent[-Mother]      are

insufficient    to    establish   the        absence   of   potential   future

neglect of the juvenile should she be returned to Respondent[-

Mother]’s custody and care.”           As a result, in light of these

findings, which establish a reasonable basis for believing that

the neglect that Kayla suffered in the past would recur in the

event   that   she   was   returned    to    Respondent-Mother’s    care,   we

conclude that the trial court adequately addressed Respondent-

Mother’s current fitness to parent Kayla.

                              III. Conclusion
                                  -17-
       Thus, for the reasons set forth above, we conclude that

none   of   Respondent-Mother’s   challenges   to   the   trial   court’s

order have merit.     As a result, the trial court’s order should

be, and hereby is, affirmed.

       AFFIRMED.

       Judges McGEE and STEELMAN concur.

       Report per Rule 30(e).
