{ "id": 8301051, "name": "IN RE: J.S.L., A Minor Child IN RE: G.T.L., A Minor Child IN RE: T.L.L., A Minor Child", "name_abbreviation": "In re J.S.L.", "decision_date": "2006-04-18", "docket_number": "No. COA05-768", "first_page": "151", "last_page": "164", "citations": [ { "type": "official", "cite": "177 N.C. App. 151" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "558 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "502", "parenthetical": "upholding termination of parental rights order where \"although the respondent mother made some efforts, the evidence supports the trial court's determination that she did not make sufficient progress in correcting conditions that led to the child's removal\"" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9365071 ], "year": 2002, "pin_cites": [ { "page": "235-236", "parenthetical": "upholding termination of parental rights order where \"although the respondent mother made some efforts, the evidence supports the trial court's determination that she did not make sufficient progress in correcting conditions that led to the child's removal\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0228-01" ] }, { "cite": "618 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633890 ], "year": 2005, "pin_cites": [ { "page": "819", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0813-01" ] }, { "cite": "623 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634710 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/623/0587-01" ] }, { "cite": "615 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633272 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "394" }, { "page": "394-96", "parenthetical": "emphasis in original" }, { "page": "394-96" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0391-01" ] }, { "cite": "621 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634269 ], "year": 2005, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/se2d/621/0015-01" ] }, { "cite": "616 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633480 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "274" }, { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0264-01" ] }, { "cite": "555 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2001, "pin_cites": [ { "page": "666" }, { "page": "664", "parenthetical": "internal quotations and citations omitted" }, { "page": "664" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9379604 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "360" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0349-01" ] }, { "cite": "375 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "681" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 662", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527488 ], "year": 1989, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0662-01" ] }, { "cite": "453 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "224-225" }, { "page": "224" }, { "page": "224-25" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 693", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526237 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "700" }, { "page": "699" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0693-01" ] }, { "cite": "173 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353569 ], "year": 2005, "pin_cites": [ { "page": "383", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0375-01" ] }, { "cite": "360 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3795488, 3786707, 3786455, 3793944, 3788505, 3793787, 3789308, 3792765 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0064-03", "/nc/360/0064-01", "/nc/360/0064-04", "/nc/360/0064-07", "/nc/360/0064-06", "/nc/360/0064-08", "/nc/360/0064-02", "/nc/360/0064-05" ] }, { "cite": "171 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8437773 ], "year": 2005, "pin_cites": [ { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0457-01" ] }, { "cite": "171 N.C. App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8436928 ], "year": 2005, "pin_cites": [ { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0347-01" ] }, { "cite": "172 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11251994 ], "year": 2005, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/nc/172/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 8-44.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "598 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "662" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8998657 ], "year": 2004, "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0509-01" ] }, { "cite": "607 S.E.2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "702", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8469558 ], "year": 2005, "pin_cites": [ { "page": "355", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0350-01" ] }, { "cite": "477 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "215" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889393 ], "year": 1996, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0332-01" ] }, { "cite": "581 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2003, "pin_cites": [ { "page": "146", "parenthetical": "citations and internal quotations omitted" }, { "page": "145", "parenthetical": "emphasis supplied" }, { "page": "146" }, { "page": "146" }, { "page": "147" }, { "page": "148" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 491", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188208 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "493", "parenthetical": "citations and internal quotations omitted" }, { "page": "492-93" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0491-01" ] } ], "analysis": { "cardinality": 1084, "char_count": 29898, "ocr_confidence": 0.738, "pagerank": { "raw": 6.362535948249803e-07, "percentile": 0.9589756005079833 }, "sha256": "4616773130bc48cdcff8aa7812eb27b4e5b2cc017e1da474101767b1cc33f266", "simhash": "1:328bd60a82ee5fd0", "word_count": 4788 }, "last_updated": "2023-07-14T22:32:29.259677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and GEER concur." ], "parties": [ "IN RE: J.S.L., A Minor Child IN RE: G.T.L., A Minor Child IN RE: T.L.L., A Minor Child" ], "opinions": [ { "text": "TYSON, Judge.\nR.K.L. (\u201crespondent mother\u201d) and R.L.L. (\u201crespondent father\u201d) appeal from judgments entered terminating their parental rights to their children, J.S.L, G.T.L., and T.L.L. We affirm in part, reverse in part, and remand.\nI. Motion to Dismiss and Motion to Amend the Record\nSubsequent to the filing of respondent father\u2019s notice of appeal, the appellee guardian ad litem for the minor children filed a motion to dismiss respondent father\u2019s appeal pursuant to Rule 37 of the North Carolina Rules of Appellate Procedure.\nThe trial court\u2019s judgments were entered 30 December 2004 and served on the parties. The ten-day period for filing a notice of appeal expired on 13 January 2005. The attorney for appellee Rutherford County Department of Social Services (\u201cDSS\u201d) served respondent father by placing a copy of the judgments in his attorney\u2019s mailbox maintained by the clerk of court at the courthouse. The attorney representing respondent father died on 7 February 2005. Respondent father filed his notice of appeal pro se on 9 February 2005.\nSubsequent to the filing of the motion to dismiss, respondent father filed a petition for writ of certiorari. Respondent father\u2019s petition is granted. N.C. Gen. Stat. \u00a7 7A-31 (2005); N.C.R. App. P. 21 (2006). Appellee guardian ad litem\u2019s motion to dismiss is denied.\nRespondent father moved to amend his notice of appeal to include the following additional assignment of error: \u201c[t]he trial court committed reversible error in delaying entry of each order of adjudication in this case beyond the statutory requirement of thirty days.\u201d We allow respondent father\u2019s motion to amend to add this additional assignment of error.\nII. Background\nRespondents have three children, J.S.L., age thirteen, G.T.L., age nine, and T.L.L., age eight.\nOn 1 November 2002, both respondents admitted to allegations of neglect concerning all three children and stipulated the children\u2019s best interests would be served for DSS to have custody of the children and for DSS to make a lawful placement of the children.\nDSS developed a case plan to address the issue of neglect of the children. Respondent father signed the case plan. Respondent mother declined to sign the plan,\nThe case plan established several objectives, including: (1) respondent mother should overcome substance abuse and addiction; (2) respondents should establish a home free of domestic violence; (3) respondents should provide the children a sanitary environment in which to live; (4) respondents should provide financial child support for the children; and (5) respondent mother should gain stable mental health and good parenting abilities.\nTo work toward the first objective, DSS encouraged respondent mother to voluntarily go to an inpatient treatment program for her substance abuse problems. The trial court found respondent mother has \u201cexperienced substantial problems with abuse of prescription drugs and illegal controlled substances since 1996. She refuses to attend recommended mental health therapy sessions, instead going to any length to obtain prescribed pain medication from numerous sources.\u201d Respondent mother never voluntarily attended an inpatient program. Respondent mother was incarcerated from April 2003 until July 2003 for an attempted forgery conviction and was required to undergo mandatory treatment during that time. DSS also requested respondent mother consult only one doctor for legitimate illnesses and one pharmacy for obtaining prescription medications. Respondent mother has not complied with that request.\nTo work toward the second objective, DSS requested that respondent father attend anger management classes. Respondent father attended and completed the classes. After attending the anger management classes, respondent father pled guilty to assault on a female after he \u201cspit\u201d on respondent mother.\nDSS established the third objective because respondents were without a home. Respondents had failed to pay rent and utility bills and were forced to vacate their home. Following DSS\u2019s recommendation, respondents moved into a mobile home rent free and received assistance to pay utilities. Respondent father is gainfully employed. Respondent mother is in the process of filing for disability.\nDSS established the fifth objective as a result of respondent mother\u2019s substance abuse and addiction. DSS encouraged respondent mother to obtain a mental health evaluation and follow all recommendations. Respondent mother never presented for a mental health examination, even though she called mental health services several times and threatened to commit suicide.\nIII. Issues\nRespondent mother argues the trial court: (1) lacked jurisdiction to hear the motion in the cause to terminate her parental rights because she was not properly served with notice; (2) erred in receiving her mental health records into evidence; and (3) erred in not appointing a guardian ad litem to aid her.\nRespondent father argues the trial court erred by: (1) making findings of fact that are not supported by clear, cogent, and convincing evidence; (2) concluding as a matter of law that grounds existed to terminate his parental rights to each child and failing to make proper conclusions of law; (3) terminating his rights to each child where the motions in the cause violated N.C. Gen. Stat. \u00a7 7B-1104(6); (4) terminating his rights to each child when he was not properly served with notice under N.C. Gen. Stat. \u00a7\u00a7 7B-1106.1.26 and 7B-1106.1.27; and (5) delaying entry of the adjudicatory orders in this case beyond the statutory requirement of thirty days after hearing as required by N.C. Gen. Stat. \u00a7 7B-1110(a).\nIV. Standard of Review\n\u201cOn appeal, our standard of review for the termination of parental rights is whether the trial court\u2019s findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law.\u201d In re Baker, 158 N.C. App. 491, 493, 581 S.E.2d 144, 146 (2003) (citations and internal quotations omitted).\nThe trial court\u2019s \u201cconclusions of law are reviewable de novo on appeal.\u201d Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996).\nV. Respondent Mother\nA. Jurisdiction\nRespondent mother argues the trial court lacked jurisdiction to hear DSS\u2019s motion in the cause to terminate her parental rights. She asserts DSS failed to properly serve her with notice of the termination proceedings.\nN.C. Gen. Stat. \u00a7 7B-1106.19(a)(l) (2005) provides, \u201c(a) Upon the filing of a motion pursuant to G.S. 7B-1102, the movant shall prepare a notice directed to each of the following persons or agency, not otherwise a movant: (1) The parents of the juvenile.\u201d\nRespondent mother was present with counsel and participated in the termination hearing and entered no objection regarding improper notice at the proceeding. This Court stated in In re B.M., \u201c[w]here a movant fails to give the required notice, prejudicial error exists, and a new hearing is required. However, a party who is entitled to notice of a hearing waives that notice by attending the hearing of the motion and participating in it without objecting to the lack thereof.\u201d 168 N.C. App. 350, 355, 607 S.E.2d 698, 702 (2005) (internal quotations and citations omitted).\nIn In re J.S., the respondents contended they did not receive proper notice of the permanency planning hearing in accordance with N.C. Gen. Stat. \u00a7 7B-907(a). 165 N.C. App. 509, 514, 598 S.E.2d 658, 662 (2004). The respondents and their attorneys were present and participated in the hearing and failed to object to the insufficiency of notice. Id. We held the respondents \u201cwaived any objection they might have had to improper notice.\u201d Id. Here, respondent mother appeared with counsel at the hearing and failed to object to any lack of notice. This assignment of error is overruled.\nB. Medical Records\nRespondent mother argues the trial court erred by receiving her mental health medical records into evidence. We disagree.\nAt trial, respondent mother made a general objection to the admission of her mental health records on privacy grounds. Respondent mother argues that \u201cany records relating to [her] mental or substance abuse issues are not admissible as hospital records.\u201d Respondent mother contends the mental health records were inadmissible based upon the requirements of N.C. Gen. Stat. \u00a7 122C-52(b).\nThe trial court made the following finding of fact:\n(6) Upon conclusion of all the evidence as to adjudication the Court recessed for the purpose of reviewing the substantial medical records of the mother offered into evidence by the Guardian ad Litem. Following review of the medical records of [respondent mother] and the other evidence presented the Court is convinced that [she] has experienced substantial problems with abuse of prescription drugs and illegal controlled substances since 1996.\nN.C. Gen. Stat. \u00a7 8-44.1 (2005) provides:\nCopies or originals of hospital medical records shall not be held inadmissible in any court action or proceeding on the grounds that they lack certification, identification, or authentication, and shall be received as evidence if otherwise admissible, in any court or quasi-judicial proceeding, if they have been tendered to the presiding judge or designee by the custodian of the records, in accordance with G.S. 1A-1, Rule 45(c), or if they are certified, identified, and authenticated by the live testimony of the custodian of such records.\nHospital medical records are defined for purposes of this section and G.S. 1A-1, Rule 45(c) as records made in connection with the diagnosis, care and treatment of any patient or the charges for such services except that records covered by G.S. 122-8.1, G.S. 90-109.1 and federal statutory or regulatory provisions regarding alcohol and drug abuse, are subject to the requirements of said statutes.\nN.C. Gen. Stat. \u00a7 122C-52(b) (2005) provides, \u201c[e]xcept as authorized by G.S. 122C-53 through G.S. 122C-56, no individual having access to confidential information may disclose this information.\u201d N.C. Gen. Stat. \u00a7 122C-3(9) (2005) defines confidential information as, \u201cany information, whether recorded or not, relating to an individual served by a facility that was received in connection with the performance of any function of the facility.\u201d N.C. Gen. Stat. \u00a7 122C-54 (2005) provides exceptions to N.C. Gen. Stat. \u00a7 122C-52 and requires a medical facility tp \u201cdisclose confidential information if a court of competent jurisdiction issues an order compelling disclosure.\u201d\nThis Court in In re J.B. held the trial court did not err when it admitted the respondent\u2019s mental health records into evidence. 172 N.C. 1, 18, 616 S.E.2d 264, 274 (2005). The trial court ordered the production of the respondent\u2019s mental health records prior to the termination hearing at a permanency planning review hearing. Id. \u201cIn light of these statutory provisions, we conclude that petitioner was not precluded from admitting respondent\u2019s mental health records into evidence.\u201d Id. at 18, 616 S.E.2d at 274. Respondent mother did not file a motion in limine or request an in camera review by the trial court and entered only a general objection when the records were tendered into evidence. This assignment of error is dismissed.\n0. Guardian ad Litem\nRespondent mother argues the trial court erred by failing to appoint a guardian ad litem for her. We disagree.\nN.C. Gen. Stat. \u00a7 7B-1101 governs the appointment of a guardian ad litem during termination of parental rights proceedings. Respondent does not argue the trial court erred in failing to appoint her a guardian ad litem under N.C. Gen. Stat. \u00a7 7B-1101. Respondent mother relies upon N.C. Gen. Stat. \u00a7 7B-601 and argues a guardian ad litem was statutorily required to have been appointed to her during the adjudication proceedings.\nThis Court has stated, \u201c[t]he trial court is under a statutory duty to appoint a GAL when a petition \u2018alleges\u2019 a child is dependent and the parent can not offer proper care for their child based on mental illness or other conditions listed in N.C. G\u00e9n. Stat. \u00a7 7B-602(b)(l).\u201d In re D.D.Y., 171 N.C. App. 347, 353, 621 S.E.2d 15, 18 (2005).\nIn the judgments terminating respondents\u2019 parental rights, the court found that both respondents \u201cwillfully left the [children] in foster care 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 [children].\u201d N.C. Gen. Stat. \u00a7 7B-llll(a)(2) (2005). The court did not find that the juveniles were dependent. N.C. Gen. Stat. \u00a7 7B-llll(a)(6) (2005). DSS argues because the motion in the cause to terminate respondent mother\u2019s parental rights failed to allege dependency, respondent mother was not entitled to a guardian ad litem.\nIn In re O.C. and O.B., this Court held \u201cthe motion to terminate parental rights neither alleged respondent was incapable of caring for the minor children due to a debilitating condition, nor cited G.S. \u00a7 7B-1111(a)(6).\u201d 171 N.C. App. 457, 462, 615 S.E.2d 391, 394, disc. rev. denied, 360 N.C. 64, 623 S.E.2d 587 (2005). The respondent In re O. C. and O.B. arg\u00fced the termination order should be reversed because the initial adjudication petition alleged the children were both neglected and dependant and a guardian ad litem had not been appointed to her. Id. We rejected this argument and stated:\nOnly the order on termination of parental rights is before this Court; the order on adjudication is not. Even assuming, arguendo, that the trial court failed to appoint a GAL for respondent during the adjudication proceedings and that she was even entitled to such a GAL, we reject her argument that this bears a legal relationship with the validity of the later order on termination. First, there is no statutory authority for the proposition that the instant order is reversible because of a GAL appointment deficiency that may have occurred years earlier. Our legislature has adopted two separate juvenile GAL appointment provisions concerning the appointment of a GAL for a parent, one found in Article 6 of the Juvenile Code concerning petitions alleging the status of the child, G.S. \u00a7 7B-602(b), and a second, equally specific provision in Article 11 concerning the appointment of a GAL for a parent within the context of a motion or petition for termination of parental rights, G.S. \u00a7 7B-1101. Neither of these two provisions, nor anything in our Juvenile Code, evinces an intent on the part of the legislature that a failure to appoint a GAL during the earlier adjudication proceedings impacts a later order on termination of parental rights. Secondly, there is no common law authority to support such a proposition.\nId. at 462-63, 615 S.E.2d at 394-96 (emphasis in original).\nConsistent with this Court\u2019s holding in In re O.C. and O.B. our General Assembly recently amended the law governing appointment for a guardian ad litem for a parent. N.C. Gen. Stat. \u00a7 7B-1101.1(c) (2005). The amendments are applicable only to proceedings filed on or after 1 October 2005 and are therefore not applicable here. The amendment reveals the legislature\u2019s intent to limit the appointment of a guardian ad litem. The amended statute provides:\nOn motion of any party or on the court\u2019s own motion, the court may appoint a guardian ad litem for a parent if the court determines that there is a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest. The parent\u2019s counsel shall not be appointed to serve as the guardian ad litem.\nN.C. Gen. Stat. \u00a7 7B-1101.1(c).\nThe issue before this Court is whether respondent mother was, in light of the allegations in the motion in the cause, entitled to appointment of a guardian ad litem for the termination of parental rights proceedings. The motion to terminate respondent mother\u2019s parental rights did not allege dependency. The trial court was not required to appoint a guardian ad litem under N.C. Gen. Stat. \u00a7 7B-1101. In re O.C. and O.B., 171 N.C. App. at 462, 615 S.E.2d at 394-96. This assignment of error is overruled.\nVI. Respondent Father\nRespondent father argues the trial court erred when it concluded as a matter of law that grounds exist to terminate his parental rights to each child, and the trial court failed to make proper conclusions of law.\nThe trial court concluded respondent father \u201cwillfully left [his children] in foster care 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 [children].\u201d N.C. Gen. Stat. \u00a7 7B-llll(a)(2). Respondent father stipulated for DSS to have custody and to make placement and cooperated with DSS by signing and working toward the goals of the case plan. The court found respondent father \u201ccompleted anger management classes as required by his case plan.\u201d Respondent father\u2019s social worker testified he had maintained employment. Respondent father had obtained and provided adequate housing for his children at the time of trial.\nThis Court has stated:\nAt the hearing on a petitioner\u2019s motion for termination of parental rights, the burden of proof shall be upon the petitioner or movant to prove the facts justifying such termination by clear and convincing evidence. N.C. Gen. Stat. \u00a7 7B-llll(b) (2001). Thus, in order to prevail in a termination of parental rights proceeding, the petitioner must: (1) allege and prove all facts and circumstances supporting the termination of the parent\u2019s rights; and (2) demonstrate that all proven facts and circumstances amount to clear, cogent, and convincing evidence that the termination of such rights is warranted.\nIn re Baker, 158 N.C. App. at 492-93, 581 S.E.2d at 145 (emphasis supplied).\nThis Court also stated:\n[W]e must also determine that there was clear, cogent, and convincing evidence that (1) respondents \u201cwillfully\u201d left the juvenile in foster care for more than twelve months, and (2) that each respondent had failed to make \u201creasonable progress\u201d in correcting the conditions that led to the juvenile\u2019s removal from the home.\nId. at 494, 581 S.E.2d at 146.\nRegarding wilfulness, this Court has stated:\nA finding of willfulness does not require a showing that the parent was at fault. Willfulness is established when the respondent had the ability to show reasonable progress, but was unwilling to make the effort.\nThe trial court\u2019s order is devoid of any finding that respondent was unwilling to make the effort to make reasonable progress in remedying the situation that led to the adjudication of neglect. The evidence presented at the hearing is directly contrary.\nIn re C.C., 173 N.C. App. 375, 383, 618 S.E.2d 813, 819 (2005) (internal quotations and citations omitted).\nIn re Baker, this Court found the respondent father willfully left his child in foster care for more than twelve months without making reasonable progress towards correcting the circumstances that led to the child\u2019s removal. 155 N.C. App. at 494, 581 S.E.2d at 146. The respondent father\u2019s son had bruises on his body from \u201cimproper discipline\u201d administered by the respondent father. Id. at 495, 581 S.E.2d at 147. The respondent father attended anger management classes, but the therapist who taught the classes testified the respondent father had a limited understanding of the concepts involved. Id. at 496, 581 S.E.2d at 148. He did not complete parenting classes. Id. The respondent father failed to complete the requirements of the case plan. Id. The respondent father also refused to sign a DSS family plan for reunification. Id.\nThis Court stated:\n\u201cExtremely limited progress is not reasonable progress.\u201d In re Nolen, 117 N.C. App. 693, 700, 453 S.E.2d 220, 224-225 [(1995)]; see also In re Fletcher, 148 N.C. App. 228, 235-236, 558 S.E.2d 498, 502 (2002) (upholding termination of parental rights order where \u201calthough the respondent mother made some efforts, the evidence supports the trial court\u2019s determination that she did not make sufficient progress in correcting conditions that led to the child\u2019s removal\u201d); In re Bishop, 92 N.C. App. 662, 670, 375 S.E.2d 676, 681 [(1989)] (holding trial court\u2019s finding was supported by clear, cogent, and convincing evidence where \u201calthough respondent has made some progress in the areas of job and parenting skills, such progress has been extremely limited\u201d).\nId.\nThese facts are not present in the case before us. The trial court failed to make findings sufficient to establish either respondent father acted \u201cwilfully\u201d or lacked \u201creasonable progress.\u201d\nIn In re Nolen, the respondent mother failed to make reasonable progress. 117 N.C. App. at 699, 453 S.E.2d at 224. This Court found the \u201crespondent\u2019s alcoholism and abusive living arrangement have continued,\u201d and the \u201crespondent has not obtained positive results from her sporadic efforts to improve her situation.\u201d Id. at 699-700, 453 S.E.2d at 224-25.\nIn In re Nesbitt, this Court reversed the trial court\u2019s judgment terminating the respondent\u2019s parental rights and held the respondent \u201cwas cooperative with the social workers, completed all required parenting classes, mental health therapy, and visited with [the child] at every possible chance.\u201d 147 N.C. App. 349, 360, 555 S.E.2d 659, 666 (2001). The Court stated:\nWhile we do conclude that there is evidence in the record to support [the finding that respondent failed to make reasonable progress]; we hold that this evidence does not rise to the level of clear, cogent and convincing evidence of grounds for termination of parental rights.\nClear, cogent and convincing describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt.\nId. at 355, 555 S.E.2d at 664 (internal quotations and citations omitted).\nHere, respondent father voluntarily agreed to and completed the requirements of his case plan. When asked at trial whether DSS had informed him of any obligations he needed to complete in order to have his children reunited with him, he replied, \u201cI\u2019ve done everything they\u2019ve told me to do.\u201d\nThe trial court\u2019s findings state respondent father completed anger management classes. The findings also state respondents reside in a mobile home owned by the paternal grandfather, and they received help in paying their utilities. The findings do not explain how that fails to meet the requirement that respondents \u201cobtain a residence suitable for their children without eviction or loss of utilities.\u201d The findings also state respondent father visited the children weekly.\nWith respect to child support, the trial court found respondent father did not comply with the requirement that he contact DSS to arrange for payment of support, but in finding respondent father failed to pay child support, the trial court made no findings respondent father was able to provide support more than he did. The trial court made no finding that respondent father\u2019s failure to pay was willful. Respondent father\u2019s social worker testified that given the economic circumstances in Rutherford County, respondent father \u201cwas laid off for brief periods of time,\u201d but the evidence showed he maintained employment when available in Rutherford County. His social worker also testified:\n[t]he parents have purchased gifts for the children at birthdays and Christmas. Since the first of this year, we.have changed our visitation slightly where the family has a meal together. Typically at a place- like McDonald\u2019s or Burger King or Bojangles, those sorts of places. So about once a week they are purchasing a meal for their children.\nThe trial court\u2019s judgments contain no further findings of fact regarding specific acts of domestic violence and only state generally that \u201c[a]cts of domestic violence by [the father] against [the mother] have infiltrated the . . . household for years and continue to do so.\u201d While the guardian ad litem cites to various other evidence of domestic violence, the court made no findings of fact regarding that evidence and it cannot be considered. The only domestic violence incident found by the court is the spitting incident. Respondent father testified regarding this incident:\nQ [Y]ou\u2019ve never had a drug problem?\nA No.\nQ You might have gotten mad or there\u2019s been some violence because of the\u2014\nA Yes. Of the drugs.\nQ Is there anything else about raising children that\u2019s a problem for you?\nA No.\nQ Is there anything about raising children that you know is a problem for your mother?\nA No.\nQ You have had no criminal problems with any kind of violence other than these things with your wife; is that correct?\nA In October \u2014 when that \u2014 when I got charged.\nQ Other than with your wife. You haven\u2019t gone around swatting people and getting in fights and getting arrested?\nA No.\nQ No criminal assaultive behavior?\nA No.\nQ You want your kids back bad?\nA Yes, I do.\nRespondent father \u201cobtained positive results\u201d from his efforts to remain employed, provide housing for his children, and complete anger management classes.\nOur standard of review is whether clear, cogent, and convincing evidence supports a finding and conclusion to terminate respondent father\u2019s parental rights. In re Nesbitt, 147 N.C. App. at 355, 555 S.E.2d at 664. The trial court failed to make findings of fact to support a conclusion that respondent father \u201cwillfully left the [children] in foster care 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 [children].\u201d N.C. Gen. Stat. \u00a7 7B-llll(a)(2). A parent\u2019s failure to fully satisfy all elements of the case plan goals is not the equivalent of a lack of \u201creasonable progress.\u201d Id. The trial court\u2019s findings suggest substantial cooperation and progress by respondent father with DSS to attend classes, find work, and to provide a safe home for his children, in the face of harsh economic conditions, while coping with respondent mother\u2019s threats of suicide and her being uncooperative both with him and DSS. The trial court failed to make any other findings to establish wilfulness or a lack of \u201creasonable progress\u201d by respondent father to sustain its conclusion that statutory grounds for termination had been proven to the required standard. Id. Those portions of the judgments terminating respondent father\u2019s rights are reversed. In light of our decision, it is unnecessary to consider his remaining assignments of error.\nVIL Conclusion\nPresuming notice was deficient, respondent mother was present with counsel and participated without objection to notice in the termination hearings. Respondent mother waived any purported lack of personal jurisdiction by the trial court to hear the motion in the cause to terminate her parental rights. The trial court did not err in receiving respondent mother\u2019s mental health medical records into evidence. Under these facts, the trial court did not err when it failed to appoint a guardian ad litem for respondent mother at the termination hearings. The trial court\u2019s judgments terminating respondent mother\u2019s parental rights are affirmed.\nThe trial court failed to make adequate findings of fact to support its conclusion that respondent father \u201cwillfully left the [children] in foster care for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circum-. stances has been made in correcting those conditions which led to the removal of the [children].\u201d N.C. Gen. Stat. \u00a7 7B-llll(a)(2). The trial court\u2019s judgments terminating respondent father\u2019s parental rights are reversed.\nAffirmed in Part, Reversed in Part, and Remanded.\nJudges HUDSON and GEER concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "No brief filed for petitioner-appellee Rutherford, County Department of Social Services.", "Hunton & Williams LLP, by Ray A. Starling, for petitioner-appellee Guardian ad Litem.", "Carol Ann Bauer, for respondent mother-appellant.", "Mercedes 0. Chut, for respondent father-appellant." ], "corrections": "", "head_matter": "IN RE: J.S.L., A Minor Child IN RE: G.T.L., A Minor Child IN RE: T.L.L., A Minor Child\nNo. COA05-768\n(Filed 18 April 2006)\n1. Termination of Parental Rights\u2014 notice \u2014 objection waived by appearance\nRespondent\u2019s appearance with counsel at her termination of parental rights hearing waived any objection to improper notice.\n2. Evidence\u2014 termination of parental rights \u2014 parent\u2019s mental health records\nThe admission of respondent\u2019s mental health records at her termination of parental rights hearing was not error where the court ordered production of the records at a permanency planning review hearing, respondent did not file a motion in limine or request an in camera review, and she entered only a general objection when the records were tendered into evidence.\n3. Termination of Parental Rights\u2014 guardian ad litem for parent \u2014 no allegation of dependency \u2014 not required at adjudicatory hearing\nAppointment of a guardian ad litem was not required by N.C.G.S. \u00a7 7B-1101 (amendment not yet applicable) for a mother facing termination of her parental rights where the motion to terminate did not allege that the children were dependent. The argument that a guardian ad litem was required for the adjudication proceeding has been rejected.\n4. Termination of Parental Rights\u2014 wilfully leaving children in foster care \u2014 findings not sufficient\nIn the termination of a father\u2019s parental rights, the findings were not adequate to support the conclusion that the father had wilfully left the children in foster care for more than 12 months without reasonable progress.\nAppeals by respondent mother and respondent father from judgments entered 30 December 2004 by Judge Laura J. Bridges in Rutherford County District Court. Heard in the Court of Appeals 12 January 2006.\nNo brief filed for petitioner-appellee Rutherford, County Department of Social Services.\nHunton & Williams LLP, by Ray A. Starling, for petitioner-appellee Guardian ad Litem.\nCarol Ann Bauer, for respondent mother-appellant.\nMercedes 0. Chut, for respondent father-appellant." }, "file_name": "0151-01", "first_page_order": 185, "last_page_order": 198 }