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    "judges": [
      "Judges MARTIN and HUDSON concur."
    ],
    "parties": [
      "In re: Mercedes Laurnetta Anderson and Crystal Shanelle Cleo Anderson, Minors"
    ],
    "opinions": [
      {
        "text": "THOMAS, Judge.\nThis is an appeal by Cleveland Anderson, respondent, from orders terminating his parental rights to Mercedes Laurnetta Anderson and Crystal Shanelle Cleo Anderson.\nBy three assignments of error, Anderson contends the trial court erred: (1) in requiring him to put on additional evidence to change a prior order of termination that had been set aside; (2) in concluding that grounds exist to terminate his parental rights; and (3) in determining that termination of his parental rights is in the children\u2019s best interest. For the reasons herein, we reverse the orders of the trial court and remand for further proceedings consistent with this opinion.\nIn August of 1998,. the Wilson County Department of Social Services (DSS) filed petitions alleging that Mercedes and Crystal were neglected and dependent. At the time, the juveniles resided with their biological mother, Joann Grant. Anderson was not living with them.\nThe trial court found that Grant stipulated and agreed to an adjudication of neglect and dependency based on the allegations in the petition that the juveniles did not receive proper care, supervision, or discipline from their parents; were not provided necessary medical care; and lived in an environment injurious to their welfare. It further found that Anderson \u201chad recently expressed a desire to take his children into his home [but] has stated he is not able to provide proper care, at this time.\u201d Thereafter, DSS obtained custody of Mercedes, then two years old, and Crystal, then six months old.\nShortly after that hearing, social workers met with both parents to develop a plan for reunification and to establish a visitation schedule. Anderson told them he was not interested in obtaining custody and was not capable of meeting the children\u2019s needs or caring for them by himself. Consequently, the reunification part of the service plan only involved Grant with Anderson included in the visitation schedule. He did attend some of the visitations but usually stayed for less than the allotted time. Although notified, he did not attend a later meeting on 1 September 1999 to discuss the reunification plan with DSS.\nAnderson was employed on a part-time basis while the children were in the custody of DSS. He sporadically paid child support and was $2,627.70 in arrears by the time of the termination hearing.\nIn September of 1999, the service plan for the children was changed from reunification to adoption. DSS filed petitions in October alleging that grounds exist to terminate parental rights under N.C. Gen. Stat. \u00a7 7B-1111(2) and 7B-1111(3) and, by order entered 31 July 2000, Anderson\u2019s and Grant\u2019s parental rights were terminated.\nThe parties, however, agreed by consent order filed 13 September 2000 that the earlier order of disposition should be set aside with a further dispositional hearing scheduled. The trial court held the additional hearing in October and concluded in its order filed 27 December 2000 that it was in the best interests of the children that the parental rights be terminated. Anderson appeals.\nBy his first assignment of error, Anderson contends the trial court required him to present additional evidence to change the first order of disposition terminating his parental rights. This occurred, he argues, even though that disposition had been set aside by consent order and a new dispositional hearing ordered. We disagree.\nThe consent order provides:\n2. The parties agree that the Order on Disposition should be set aside and that a further hearing on disposition should be set before The Honorable John L. Whitley to allow the parties to present additional evidence on disposition.\nSince the consent order states that the reason for setting aside the prior disposition was to allow the parties to present \u201cadditional evidence on disposition,\u201d the second dispositional hearing was, in effect, a continuation hearing rather than a hearing de novo. Therefore, it was not error for the trial court to decide that, because no new evidence was presented, the prior ruling should be left unchanged. There is no burden of proof on the parties at disposition. None was placed on Anderson here. The trial court correctly interpreted the consent order and we thus reject Anderson\u2019s first assignment of error.\nBy his second assignment of error, Anderson contends the trial court erred in concluding that statutory grounds exist to terminate his parental rights. We agree. The trial court\u2019s findings of fact, in large part, amount to mere recitations of allegations and provide little support for the conclusions of law.\nIn all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 52(a)(1) (2001). Rule 52(a) requires three separate and distinct acts by the trial court: (1) find the facts specially; (2) state separately the conclusions of law resulting from the facts so found; and (3) direct the entry of the appropriate judgment. Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982). Thus, the trial court\u2019s factual findings must be more than a recitation of allegations. They must be the \u201cspecific ultimate facts... sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence.\u201d Montgomery v. Montgomery, 32 N.C. App. 154, 156-57, 231 S.E.2d 26, 28 (1977). \u201cUltimate facts are the final resulting effect reached by processes of logical reasoning from the evidentiary facts.\u201d Appalachian Poster Advertising Co. v. Harrington, 89 N.C. App. 476, 479, 366 S.E.2d 705, 707 (1988).\nIn summary, while Rule 52(a) does not require a recitation of the evidentiary and subsidiary facts required to prove the ultimate facts, it does require specific findings of the ultimate facts established by the evidence, admissions and stipulations which are determinative of the questions involved in the action and essential to support the conclusions of law reached.\nQuick, 305 N.C. at 452, 290 S.E.2d at 658.\nHere, the order of adjudication, filed 31 July 2000, contains only three findings of fact. Two merely recite that DSS filed a petition and that service was proper on Anderson and Grant. The third factual finding reads:\n(3) The grounds alleged for terminating the parental rights are as follows:\n[The order then lists in subsections a combination of grounds and case history.]\n(Emphasis added). As indicated by the word \u201calleged,\u201d the findings are not the \u201cultimate facts\u201d required by Rule 52(a) to support the trial court\u2019s conclusions of law, but rather are mere recitations of allegations. As a result, we are unable to conduct a proper review of the findings.\nEven if the factual findings here did not merely recite allegations, they remain insufficient to support the conclusions of law that grounds exist for termination. A termination of parental rights proceeding consists of two phases. In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). In the adjudicatory stage, the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen. Stat. \u00a7 7B-1111 exists. Id. We review whether the trial court\u2019s findings of fact are supported by clear and convincing evidence and whether the findings of fact support the conclusions of law. In re Huff, 140 N.C. App. 288, 291, 536 S.E.2d 838, 840 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001).\nIf the trial court determines that grounds for termination exist, it proceeds to the dispositional stage, and must consider whether terminating parental rights is in the best interests of the child. Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. The court is required to issue an order terminating the parental rights unless it finds that the best interests of the child indicate that the family should not be dissolved. N.C. Gen. Stat. \u00a7 7B-1110(a) (2001); Blackburn, 142 N.C. App. at 613, 543 S.E.2d at 910. \u201cWhile there is no requirement at this dispositional stage for the court to make findings of fact upon the issuance of an order to terminate parental rights, such findings and conclusions must be made upon any determination that the best interests of the child require that rights not be terminated.\u201d Id. We review the trial court\u2019s decision to terminate parental rights for abuse of discretion. In re Mitchell M., 148 N.C. App. 483, 490, 559 S.E.2d 237, 242, temporary stay allowed, 355 N.C. 349, 561 S.E.2d 891 (2002), reversed on other grounds, 356 N.C. 288, 570 S.E.2d 212 (2002).\nHere, the trial court listed two statutory grounds for termination. The first ground comports with N.C. Gen. Stat. \u00a7 7B-1111(a)(2) (2001):\nCleveland Anderson . . . willfully left the childfren] 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 within 12 months in correcting those conditions which led to the removal of the childfren].\nThe second comports with section 7B-1111(a)(3) (2001):\nThe childfren] hafve] been placed in the custody of a county department of social services, a licensed child-placing agency, or a child-caring institution and the parents, for a continuous period of six months next preceding the filing of the petition and have failed to pay a reasonable portion of the cost of care for the childfren] although physically and financially able to do so.\nAlthough Anderson does not raise the issue, we note initially that the trial court did not recite what standard of proof it applied at adjudication. Petitioner has the burden of proving by \u201cclear and convincing evidence\u201d that grounds for termination exist. Failure to state that findings establishing those grounds were made by clear and convincing evidence constitutes error. In re Lambert Stowers, 146 N.C. App. 438, 441, 552 S.E.2d 278, 280-81 (2001). We nevertheless address the findings for each alleged ground here.\nUnder section 7B-1111(a)(3), the trial court is required to make findings of fact concerning the parent\u2019s ability to pay and the amount of the child\u2019s reasonable needs. In re Phifer, 67 N.C. App. 16, 27, 312 S.E.2d 684, 690 (1984). Here, the trial court merely listed as an allegation that:\nd. Cleveland Anderson was ordered to pay child support and has done so sporadically. His arrears balance is $2,627.70. He is employed on a part-time basis earning $7.00 per hour.\nEven if this were a proper finding of ultimate fact rather than an allegation, it does not adequately address Anderson\u2019s ability to pay or the children\u2019s reasonable needs. Therefore, it would be insufficient to establish a ground for termination.\nThe trial court also failed to find facts necessary to support its conclusions under section 7B-1111(a)(2). The order contains only one finding as to Anderson, again a mere allegation:\nf. Cleveland Anderson was not involved in the facts included in the allegations of neglect. However, he informed the social worker at the time the children were removed that he was unable to care for the children at that time.\nThe finding does not address any showing of \u201cwillfullness\u201d or lack of \u201creasonable progress under the circumstances,\u201d following the initial removal of the children. N.C. Gen. Stat. \u00a7 7B-1111(a)(2). It only states Anderson claimed to be unable \u201cat that time,\u201d in September of 1998, to take custody of the children. While the statement is some evidence going to establish this ground, it is not determinative. The finding, even if it were not merely an allegation, is therefore insufficient to support the conclusion that under section 7B-llll(a)(2), parental rights may be terminated.\nWe note that the additional factual findings in the trial court\u2019s second and final order of disposition, which are not entirely mere recitations of evidence or allegations, do not cure the deficiencies in the trial court\u2019s adjudicatory order. See Lambert, 146 N.C. App. at 441-42, 552 S.E.2d at 281. The first order of disposition was set aside, not the adjudication. We therefore hold Anderson\u2019s second assignment of error to be meritorious. Accordingly, we do not review Anderson\u2019s last assignment of error. It addresses the trial court\u2019s conclusion that termination is in the best interests of the children.\nBased on the foregoing, we reverse the trial court\u2019s order terminating Anderson\u2019s parental rights and remand for proceedings consistent with this opinion. The trial court shall determine whether it is appropriate to allow additional evidence prior to making findings and conclusions.\nREVERSED AND REMANDED.\nJudges MARTIN and HUDSON concur.",
        "type": "majority",
        "author": "THOMAS, Judge."
      }
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    "attorneys": [
      "Stanley G. Abrams for respondent-appellant.",
      "Beaman and King, P.A., by Charlene B. King, for petitioner-appellee."
    ],
    "corrections": "",
    "head_matter": "In re: Mercedes Laurnetta Anderson and Crystal Shanelle Cleo Anderson, Minors\nNo. COA01-885\n(Filed 18 June 2002)\n1. Termination of Parental Rights\u2014 second hearing \u2014 no evidence presented \u2014 prior ruling unchanged\nThe trial court did not err in a termination of parental rights proceeding by requiring the father to present evidence where an initial order had terminated parental rights and the parties had agreed in a consent order to set aside the first order and to hold a new dispositional hearing. Since the consent order states that the reason for setting aside the prior disposition was to allow the parties to present additional evidence, the second hearing was in effect a continuation hearing and it was not error for the trial court to decide that the prior ruling should be left unchanged because no new evidence was presented.\n2. Termination of Parental Rights\u2014 findings \u2014 mere allegations\nAn order terminating parental rights was reversed where the court\u2019s findings were mere recitations of allegations. Moreover, the findings were insufficient in that they did not adequately address respondent\u2019s ability to pay, the children\u2019s reasonable needs, willfulness, or lack of reasonable progress under the circumstances following the removal of the children.\nAppeal by respondent father from judgments entered 31 July 2000 and 27 December 2000 by Judge John L. Whitley in Wilson County District Court. Heard in the Court of Appeals 14 March 2002.\nStanley G. Abrams for respondent-appellant.\nBeaman and King, P.A., by Charlene B. King, for petitioner-appellee."
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