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In re J.B.10/4/2005
ct. This contention lacks merit. Findings of fact eight and ten go to the heart of the trial court's conclusion that respondent neglected the children. Respondent's neglect of the children stems from her alcohol and drug abuse. Yet, respondent has consistently failed to address her substance abuse problems. As a result, there is a great probability of a repetition of neglect.
Since 1993, DSS has received several complaints alleging that respondent neglected the children due to respondent's substance abuse problems. Respondent entered a services agreement with DSS in which she agreed to undergo treatment for alcohol and drug abuse, but she failed to abide by that agreement. Respondent has also failed to comply with the trial court's order that she undergo substance abuse treatment and provide verification of that treatment in order to visit with the children. Because of respondent's untreated alcohol and drug abuse problems, the children are neglected juveniles in that they do "not receive proper care, supervision, or discipline from [respondent]" and live "in an environment injurious to [their] welfare." N.C.G.S. § 7B- 101(15). As to finding of fact nine, although it is supported bythe testimony of Ms. Webster, it is not a necessary finding to conclude that respondent neglected the children.
Respondent next asserts that finding of fact eleven is not supported by clear, cogent and convincing evidence because respondent actually began a detox and treatment program on 27 September 2003 rather than 13 December 2003, as stated in the finding. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2004), a trial court sitting without a jury must: "(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." In re Anderson, 151 N.C. App. 94, 96, 564 S.E.2d 599, 601-02 (2002) (citing Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982)). A trial court should find the specific ultimate facts necessary to support its judgment and those facts must be "sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence." Montgomery v. Montgomery, 32 N.C. App. 154, 156-57, 231 S.E.2d 26, 28 (1977). However, only those findings of fact which constitute ultimate facts need be supported by clear, cogent and convincing evidence. Subsidiary or evidentiary facts do not have to be so supported. A trial court need not state the evidentiary facts relied upon because Rule 52 "'does not require a recitation of the evidentiary and subsidiary facts required to prove the ultimate facts.'" In re Anderson, 151 N.C. App. at 97, 564 S.E.2d at 602 (quoting Quick, 305 N.C. at 452, 290 S.E.2d at 658).
Respondent here challenges an evidentiary fact included by thetrial court in its findings of fact. The date respondent began treatment does not constitute an ultimate fact necessary to prove that respondent neglected the children. Because this fact was not necessary to the trial court's ultimate determination, it is not required to be supported by clear and convincing evidence.
Respondent also argues that finding of fact twelve is not supported by clear and convincing evidence. The trial court found that respondent and the children's father used crack cocaine together two or three weeks before the termination of parental rights hearing. Respondent challenges the finding on the basis that the children's father was not a credible witness. However, it is the "function of trial judges in non-jury trials . . . to weigh and determine the credibility of a witness." In re Oghenekevebe, 123 N.C. App. 434, 440, 473 S.E.2d 393, 398 (1996) (citing Ingle v. Ingle, 42 N.C.
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