              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-146

                                  Filed: 5 July 2017

Guilford County, Nos. 14 JT 380-383, 15 JT 11-12

IN THE MATTER OF:

A.L.L., R.J.M., R.A.M.,
A.O.Z., D.A.M., O.E.J.M.



      Appeals by Respondents Father and Mother from an Order to Terminate

Parental Rights entered 14 November 2016 by Judge Betty J. Brown in Guilford

County District Court; appeal by Respondent Father from orders entered 4 June

2015, 17 December 2015 and 3 June 2016 by Judge Angela C. Foster in Guilford

County District Court. Heard in the Court of Appeals 5 June 2017.


      Mercedes O. Chut, for petitioner-appellee Guilford County Department of
      Health and Human Services.

      Lopez Law Firm, by Daniel J. Melo, for guardian ad litem.

      Miller & Audino, LLP, by Jeffrey L. Miller, for respondent-appellant father.

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


      INMAN, Judge.


      A North Carolina court properly exercises jurisdiction over children living in

this state and alleged to be abused, neglected or dependent, even if the children were

previously the subject of custody orders and continuing jurisdiction by a foreign state
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court, once the foreign court enters a facially valid order declining further

jurisdiction.

       Respondent-mother (“Mother”) appeals from an order terminating her parental

rights as to her minor children A.L.L. (“Abigail”), R.J.M. (“Riley”), R.A.M. (“Robert”),

A.O.Z. (“Ava”), D.A.M. (“Diana”), and O.E.J.M. (“Oscar”); Respondent-father

(“Father”) appeals the same order terminating his parental rights as to Abigail, Riley,

and Robert1 and seeks certiorari review of three permanency planning orders entered

on 4 June 2015, 17 December 2015, and 3 June 2016 (the “Permanency Orders”).

Mother contends that the trial court erred in finding that the children were

dependent and that Mother had failed to make reasonable progress in correcting the

conditions that led to their removal, and argues the trial court abused its discretion

in determining the termination of parental rights would be in the best interests of

Riley and Robert.        Father contends that the trial court lacked subject matter

jurisdiction to terminate his parental rights to Abigail, Riley, and Robert, and, in his

petition for certiorari, contends that the trial court’s permanency planning orders

failed to make the requisite findings of fact to support its adjudication of the children

as neglected and dependent.

       After careful review, we affirm.

                                I. Factual and Procedural History


       1  Father is the biological parent of only Riley, Robert, and Abigail; the putative and unknown
fathers of Ava, Diana, and Oscar did not appeal.

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        The evidence presented to the trial court tended to show the following:

        Mother gave birth to Ava in Detroit, Michigan, on 4 January 2006. In 2007,

Mother began a relationship with Father and, by the end of 2009, they had two

children together, Robert and Riley, also born in Michigan. In the course of the

parents’ relationship, four reports were made to Michigan Child Protective Services

for homelessness, domestic violence, substance abuse, and mental health issues; none

of the reports resulted in intervention by the Michigan agency. Father was convicted

at least three times for domestic violence, including two incidents involving Mother

in 2007 and 2012; he was also convicted of concealed weapon offenses in 2003 and

2010.

        Beyond domestic violence against Mother, Father also engaged in

inappropriate physical disciplining of Ava and exposed the older three children to

inappropriate sexual content. In August of 2012, Mother left Father and refused to

allow him further contact with Robert and Riley; her departure rendered her and her

children homeless. The next month, Mother gave birth to Abigail, appellants’ third

child in common, in Michigan.

        Shortly after Abigail was born, on 31 October 2012, Mother filed a child support

and custody action against Father as to Riley and Robert in the Circuit Court for

Wayne County, Michigan (the “Michigan Action”).           During the pendency of the

Michigan Action and while the children were in Mother’s custody, three more reports



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were made to Michigan Child Protective Services for neglect, physical abuse, and

mental health issues; none of these reports resulted in intervention by the Michigan

agency.

      On 16 September 2013, the Michigan court awarded Mother sole legal and

physical custody of Riley and Robert. Shortly after entry of the custody order in the

Michigan Action, Mother fled the state with her four children to escape Father.

Mother and the children settled in Guilford County, North Carolina.

      Father filed a motion to modify the custody order in the Michigan Action on 4

October 2013. The Michigan court held an evidentiary hearing on Father’s motion

on 16 April 2014 with Father present and Mother participating by phone. The

Michigan court found that Father had not established grounds to regain custody, but

granted Father supervised visitation rights in Winston-Salem, North Carolina, at his

own expense.

      Father never exercised the visitation rights awarded by the Michigan court in

2014. He has not seen Robert or Riley since 2012, when Robert was four and Riley

was three. He has never met Abigail, who is now five.

      Shortly after moving to North Carolina, Mother obtained housing assistance

from Petitioner-Appellee Guilford County Department of Health and Human Services

(“DHHS”), which paid her rent for three months. However, Mother was evicted in

the fourth month for her failure to pay rent. Following her eviction, Mother was again



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living in homeless shelters with her children and became pregnant with twins by a

third father in early 2014.

      On 20 September 2014, DHHS received two reports concerning Mother,

Abigail, Riley, Robert, and Ava. The reports indicated that Mother had slapped four-

year-old Riley, resulting in charges of misdemeanor assault on a child under the age

of twelve and misdemeanor child abuse.        The reports also stated that Mother

threatened to kill herself and her children. A mobile crisis unit evaluated Mother at

the scene of the report. Mother was involuntarily committed to a local hospital for

severe depression and suspected Post Traumatic Stress Disorder (“PTSD”).

      Two days later, DHHS filed a petition in Guilford County District Court

alleging that Abigail, Riley, Robert, and Ava were abused, neglected, and dependent

juveniles who should be removed from Mother’s custody.          DHHS was granted

nonsecure custody as to all four children. The petition alleged that Mother “used

cruel or grossly inappropriate devices or procedures to modify the behavior of a 4[-

year old] child,” that the children were living in an environment injurious to their

welfare, that Mother could not provide proper care, supervision, or discipline, and

that Mother could not arrange for appropriate alternative care for her children.

      Mother was served with the petition on 25 September 2014 in open court

during a hearing for continued nonsecure custody.       Although DHHS personnel

undertook diligent efforts prior to the hearing, they were unable to locate and serve



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Father with the petition. An adjudicatory hearing was scheduled for 20 November

2014.

        Pending the adjudicatory hearing, Mother and DHHS agreed to a case plan

requiring her to undergo parenting, psychological, psychiatric, and substance abuse

evaluations, to attend domestic violence counseling and parenting classes, and to

secure stable housing.       She was permitted visitation contingent upon a

parenting/psychological evaluation and a meeting with DHHS personnel (termed a

“TDM”) consistent with the previously entered nonsecure custody orders. Consistent

with the plan, Mother underwent all required evaluations between October and

December 2014; she was diagnosed with Major Depressive Disorder, PTSD, and

Alcohol Use Disorder. Mother’s attendance at therapy and peer support programs

was inconsistent, however, and she never enrolled in a group outpatient substance

abuse program as recommended in her substance abuse evaluation.

        On 12 November 2014, counsel for DHHS sent an email to District Court Judge

Angela Foster notifying her of the custody order in the Michigan Action and noting

the question of whether North Carolina could exercise jurisdiction over the children.

Following a phone call with a judge in Michigan, Judge Foster called the adjudicatory

hearing on the 20 November 2014 docket, but continued the hearing to allow the

Michigan court time to enter an order relinquishing jurisdiction to North Carolina.




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        On 3 December 2014, following the telephone conference with Judge Foster,

the Michigan court entered an order finding that “North Carolina is the more

convenient and appropriate forum,” and therefore the Michigan court declined and

relinquished further jurisdiction over the custody actions concerning Riley, Robert,

and Abigail to the North Carolina court.2 The record does not indicate whether the

Michigan court notified Father that it had relinquished jurisdiction to North

Carolina.

        The trial court held a pre-adjudication, adjudication and disposition hearing

on 18 December 2014. Mother was present, as was a provisional attorney appointed

by the court to represent Father’s interests.3 Mother consented to the adjudication

of Abigail, Riley, Robert, and Ava as abused, dependent, and neglected.                              As

memorialized by order filed 14 January 2015, the court acknowledged that the

current plan for the four children was reunification, but found that Mother had not

yet made sufficient progress on her case plan to order reunification.




        2 It is unclear, based on the orders in the record from the Michigan court, whether Abigail was

ever made subject to the Michigan Action; in any event, the Michigan court relinquished jurisdiction
with respect to Abigail, Riley, and Robert.
        3 Provisional counsel for Father was appointed pursuant to N.C. Gen. Stat. § 7B-1101.1 and

consistent with the principle that “[p]arents have a right to counsel in all proceedings dedicated to the
termination of parental rights.” In re L.C., 181 N.C. App. 278, 282, 638 S.E.2d 638, 641 (2007) (internal
quotations omitted). There is no indication in the record that Father’s provisional counsel was able to
locate Father.



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        On 30 January 2015, Mother delivered twins Diana and Oscar. DHHS filed

juvenile petitions as to the twins alleging the newborn twins were neglected and

dependent on the basis of the DHHS reports and criminal charges from September

2014 and the ongoing custody proceedings relating to Abigail, Riley, Robert, and Ava.4

        DHHS personnel, Mother, Mother’s therapists, and therapists for the children

met concerning visitation on 11 February 2015. It was revealed at the meeting that

Mother was not fully participating in therapy.                       As a result, the therapists

recommended against visitation until Mother was more “fully engaged” in therapy

and until recommended by the children’s therapists.

        The trial court held a 90-day review hearing concerning Abigail, Riley, Robert,

and Ava on 12 March 2015. Counsel for Mother and provisional counsel for Father

were present. DHHS personnel, despite diligent efforts to contact Father prior to the

hearing, failed to locate and serve Father with notice of the hearing. Because Father

had not been served with the juvenile petition or notice of any hearing, the provisional

attorney for Father was released. The trial court acknowledged during the hearing

that reunification remained the plan for the children, but found that Mother had not

yet made sufficient progress as planned in her service agreement with DHHS.




        4 Diana and Oscar were both adjudicated neglected and abused by consent of Mother, and the
court ordered that reunification efforts cease at the same time it ordered that such efforts cease with
respect to the other children. A recitation of the facts concerning the twins is not needed for disposition
of this appeal, as Father’s appeal concerns Abigail, Riley, and Robert only, and Mother’s appellate
brief asserts no specific argument regarding Diana or Oscar.

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      The trial court held a permanency planning review on 7 May 2015. Neither

Father nor counsel representing Father attended the hearing, and there is no

indication that Father had received notice of the hearing. Mother attended the

hearing with her live-in boyfriend, who had a criminal history of domestic violence.

Following the presentation of testimony and other evidence, DHHS and the children’s

guardian ad litem recommended changing the plan from reunification to adoption in

large part due to Mother’s refusal to take public housing in favor of living with a man

with a history of domestic violence against the recommendation of therapists, DHHS

and the trial court, and despite her enrollment in a domestic violence education

program. The trial court entered an order on 4 June 2015 changing the plan from

reunification to adoption.

      Mother continued to live with her boyfriend until August 2015, when she

moved to Charlotte, North Carolina without informing DHHS. Mother’s compliance

with the DHHS case plan further declined following her move. She had ceased

therapy in June 2015, and her enrollment in parenting classes was terminated for

failure to cooperate with the program provider.

      DHHS continued its efforts to locate Father, and in September 2015 found him

living in Warren, Michigan.      Father contacted DHHS for the first time on 9

September 2015, more than a year after the Michigan court had relinquished

jurisdiction over the children to North Carolina. He stated that he loved his children,



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was unemployed and living with his sister, and disputed the facts of one of his

domestic violence convictions.

       Father called DHHS again on 14 September 2015, and learned that he would

have to agree to a case plan with DHHS in order to reunify with his children, with

visitation permitted only on the advice of the children’s therapists. During the call,

Father acknowledged to DHHS personnel that he had used marijuana one week prior

and had been placed on probation for domestic violence against Mother while they

were together in Michigan. A month after the call, DNA testing confirmed Father’s

paternity of Riley, Robert, and Abigail, and Father agreed to undergo a home study

to facilitate reunification.

       The trial court appointed an attorney for Father on 24 September 2015.

       The trial court held another permanency planning review hearing on 19

November 2015. Mother and her attorney were present, as was Father’s attorney.

The trial court considered sworn testimony and written evidence, including a DHHS

summary report identifying Father’s lack of stable employment, lack of stable

housing, lack of a bond with the children, illegal substance use, and domestic violence

convictions as barriers to reunification. DHHS recommended that Father enter into

a case plan if he wished to pursue reunification. Father’s attorney requested a

concurrent plan for reunification and that DHHS make reasonable efforts to assist

Father. The trial court rejected that request based in part on Father’s lack of a bond



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with the children. However, the court ordered that Father enter into a case plan with

DHHS should he desire reunification.         The court concluded that the primary

permanent plan of adoption and termination of parental rights as to both Mother and

Father remained in the best interests of the children and declined to disturb its 4

June 2015 order.

      There is no indication in the record that Father or his attorney initiated contact

with DHHS to develop a case plan for reunification following the hearing.

      A third permanency planning review hearing was held on 10 March 2016.

Mother and her attorney were present, as was Father’s attorney. The trial court

again received sworn testimony and written evidence in the form of court summaries

from DHHS, the Guardian ad Litem, and Michigan DHHS.

      A home study report by Michigan DHHS concerning Father’s living

arrangements concluded that there was no room in the home for Father, let alone

children, and that the environment was not stable. The study also reported that

Father had received no unemployment benefits for two months, and his only income

was doing odd jobs. As a result, Michigan DHHS recommended against placement of

the children with Father. Following notification of the home study results, Father

stated he changed his living arrangements and moved in with his brother.

      As for Mother, documentary evidence was introduced showing she had sought

therapy and medication management for mental health issues from providers in



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Charlotte, although she had stopped attending both in November 2015. Despite her

move to Charlotte, Mother remained in a romantic relationship with the boyfriend

previously convicted of domestic violence offenses.        DHHS recommended that

adoption remain the primary placement plan with guardianship as the secondary

plan, but also recommended that Father enter into and comply with a DHHS case

plan in order to pursue reunification.        The trial court took the matter under

advisement.

      On 23 March 2016, six months after Father was located by DHHS, in a

telephone conference with his attorney and DHHS personnel, Father agreed in

principle to a service agreement. On the call, Father acknowledged that he had

choked Mother in 2012, but denied attempting to stab her.

      Twelve days later, on 4 April 2016, before Father’s service agreement was

finalized, DHHS filed verified petitions to terminate Father’s and Mother’s parental

rights. DHHS alleged in both petitions that termination of parental rights was

appropriate for neglect under N.C. Gen. Stat. § 7B-1111(a)(1) (2015), willfully leaving

the children in foster care for 12 months without reasonable progress under § 7B-

1111(a)(2), willful failure to pay a reasonable portion of cost of care pursuant to § 7B-

1111(a)(3), and incapability of providing care and supervision under § 7B-1111(a)(6).




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Mother and Father were served with their respective petitions by certified mail on 11

and 14 April 2016, and both were served again personally on 21 April 2016.5

       On 3 June 2016, the trial court entered an order—ruling on the issues it took

under advisement in the March permanency planning hearing—concluding that

adoption should remain the primary permanent plan.                   The court again ordered

Father and DHHS to enter into a service agreement if Father wanted to seek

reunification. Without referring directly to the petitions to terminate Mother’s and

Father’s parental rights, the order required DHHS to continue pursuing termination.

       The trial court heard evidence and argument on the petitions to terminate

Mother’s and Father’s parental rights on 1-2 August 2016. Father did not attend the

hearing; his attorney moved to allow him to appear via telephone because he was

unable to attend in person. DHHS counsel objected on the grounds that Father’s

identity could not be verified via telephone and the hearing had been previously

rescheduled for the explicit purpose of permitting Father to appear in person. The

court denied Father’s motion. DHHS voluntarily dismissed without prejudice its

allegation that Father was incapable of caring for the children.

       In the adjudicatory phase of the hearing, the trial court took judicial notice of

the contents of the court file and heard testimony from Mother, a social worker



       5 Although Father had previously represented to DHHS that he had moved out of the home
that had failed the home study in early 2016, he was served at that address by sheriff and certified
mail on two separate dates.

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assigned to the children, and an unlicensed “Peer Support Specialist” assisting

Mother. The trial court found that DHHS had established by “clear, cogent, and

convincing evidence” grounds to terminate Mother’s and Father’s parental rights.

       In the dispositional phase, the trial court received the report of the guardian

ad litem and heard testimony from the guardian ad litem program supervisor. The

court determined that termination of parental rights was in the best interest of each

of the children. The trial court’s written order, entered 14 November 2016, concluded

that grounds existed to terminate Mother’s parental rights under N.C. Gen. Stat. §§

7B-1111(a)(1) [abuse or neglect], (2) [lack of reasonable progress to correct conditions

that led to petition], (3) [failure to pay for juvenile’s cost of care], and (6) [incapability

and dependency], to terminate Father’s rights under N.C. Gen. Stat. §§ 7B-1111(a)(1)

and (3), and that termination of parental rights was in the best interests of the

children.

       Mother and Father appealed. Father also seeks certiorari review of the three

Permanency Orders, having failed to identify them in his Notice of Appeal or state

them in his Proposed Issues for Review on Appeal consistent with N.C. Gen. Stat. §

7B-1001(5)(a)(3).

                                       II. Analysis

A. Father’s Appeal




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      Father does not challenge any of the findings of fact or conclusions of law in

the Termination Order. He contends, however, that the trial court lacked subject

matter jurisdiction to determine his rights with respect to Riley, Robert, and Abigail

and that the trial court violated his statutory rights to notice and due process. For

reasons we will explain, we disagree.

      1.      Subject-Matter Jurisdiction

      North Carolina’s Uniform Child Custody Jurisdiction and Enforcement Act

(“UCCJEA”), N.C. Gen. Stat. § 50A-101 et seq., governs the district court’s subject-

matter jurisdiction in child custody disputes. A trial court’s jurisdiction pursuant to

the UCCJEA is reviewed de novo. In re J.H., ___ N.C. App. ___, ___, 780 S.E.2d 228,

233 (2015).

      Michigan and North Carolina have codified the UCCJEA in virtually identical

terms. N.C. Gen. Stat. § 50A-101 et seq.; Mich. Comp. Laws § 722.1101 et seq.

Although North Carolina’s district courts have original and exclusive jurisdiction

over juvenile abuse, neglect, and dependency cases under N.C. Gen. Stat. § 7B-200(a),

“the jurisdictional requirements of the UCCJEA . . . must also be satisfied for the

court to have authority to adjudicate petitions filed pursuant to our juvenile code.” In

re J.W.S., 194 N.C. App. 439, 446, 669 S.E.2d 850, 854 (2008) (citing In re Brode, 151

N.C. App. 690, 566 S.E.2d 858 (2002)). The UCCJEA recognizes four modes of

subject-matter jurisdiction: (1) initial child-custody jurisdiction, N.C. Gen. Stat. §



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50A-201; (2) exclusive, continuing jurisdiction, N.C. Gen. Stat. § 50A-202; (3)

jurisdiction to modify determination, N.C. Gen. Stat. § 50A-203; and (4) temporary

emergency jurisdiction, N.C. Gen. Stat. § 50A-204.

       Temporary emergency jurisdiction exists “if the child is present in this State

and . . . it is necessary in an emergency to protect the child because the child, or a

sibling or parent of the child, is subjected to or threatened with mistreatment or

abuse.” N.C. Gen. Stat. § 50A-204(a). “A North Carolina court that does not have

jurisdiction under N.C. Gen. Stat. §§ 50A-201 or 50A-203 has temporary emergency

jurisdiction . . . .” J.W.S., 194 N.C. App. at 449, 669 S.E.2d at 856. A district court

need not make findings of fact to exercise temporary emergency subject matter

jurisdiction, In re E.X.J., 191 N.C. App. 34, 40-41, 662 S.E.2d 24, 27-28 (2008), aff’d

per curiam, 363 N.C. 9, 672 S.E.2d 19 (2009), and the entry of nonsecure custody

orders is permitted thereunder provided the terms of § 50A-204(a) are satisfied. In

re J.H., ___ N.C. App. at ___, 780 S.E.2d at 237. Once a court exercising temporary

emergency jurisdiction learns of a custody determination made in another state,

however, it must communicate with the other state’s court to resolve subject matter

jurisdiction going forward because the other state exercises exclusive and continuing

jurisdiction as a result of its prior order. N.C. Gen. Stat. §§ 50A-202, 50A-204, & 50A-

110.




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       There is no dispute that the trial court had temporary emergency jurisdiction

to enter nonsecure custody orders with respect to Riley, Robert, and Abigail: DHHS

sought and procured the orders as a result of Mother’s threats to kill herself and her

children. But because the Michigan Action included a custody determination as to

the juveniles,6 the trial court could obtain subject matter jurisdiction over them only

if North Carolina would otherwise have initial child custody jurisdiction under N.C.

Gen. Stat. § 50A-201(a)(1) or (2) and if :

                               (1) The court of the other state [Michigan]
                       determines it no longer has exclusive, continuing
                       jurisdiction under G.S. 50A-202 or that a court of
                       this State would be a more convenient forum under
                       G.S. 50A-207; or

                              (2) A court of this State or a court of the other
                       state determines that the child, the child’s parents,
                       and any person acting as a parent do not presently
                       reside in the other state.

N.C. Gen. Stat. § 50A-203(a). N.C. Gen. Stat. § 50A-201(a)(1) provides for initial

custody jurisdiction if “[t]his State is the home state of the child on the date of the

commencement of the proceeding . . . .” The statute defines “home state” as that “in

which a child lived with a parent . . . for at least six consecutive months immediately

before the commencement of a child-custody proceeding,” id. § 50A-102(7), and we




       6  Again, it is unclear from the record whether the Michigan Action included Abigail. Mother’s
petition for custody which initiated the Michigan Action did not mention Abigail, who was just one
month old at that time. However, the Michigan court entered an order relinquishing jurisdiction with
regard to Riley, Robert, and Abigail.

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determine a child’s home state jurisdiction based on the physical location of a child

and their parent. In re K.U.-S.G., 208 N.C. App. 128, 134, 702 S.E.2d 103, 107 (2010).

If a parent and her children are subject to the continuing and exclusive jurisdiction

of another state’s custody order, our courts acquire jurisdiction if the other state’s

court relinquishes jurisdiction consistent with N.C. Gen. Stat. § 50A-203(a) and if

North Carolina is the children’s “home state” as defined in N.C. Gen. Stat. § 50A-

201(a)(1). See also In re J.H, __ N.C. App. __, __, 780 S.E.2d 228, 235-36 (2015)

(applying this analysis to a North Carolina order modifying a Texas custody order).

      Abigail, Riley, Robert, and Mother lived in North Carolina for more than a year

prior to the trial court’s hearing on pre-adjudication, adjudication, and disposition on

18 December 2014. Thus, North Carolina would qualify as the “home state” for the

juveniles pursuant to N.C. Gen. Stat. § 50A-201(a)(1) and would have acquired initial

custody jurisdiction but for the Michigan Action.          Once the Michigan court

determined North Carolina would be a more convenient forum and relinquished

jurisdiction over the three children, the district court could assert jurisdiction under

N.C. Gen. Stat. § 50A-203.

      We will not disturb the trial court’s assertion of jurisdiction based upon a

facially valid order from another state ceding jurisdiction to this State. See, e.g., In

re T.R., ___ N.C. App. ___, ___, 792 S.E.2d 197, 201 (2016) (“Nothing in the UCCJEA

requires North Carolina’s district courts to undertake a collateral review of a facially



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valid order from a sister state before exercising jurisdiction pursuant to N.C. Gen.

Stat. § 50A-203(1).”) (citation omitted).

       2. Notice and Due Process

       Father raises the issue of notice and due process in several contexts relating to

the UCCJEA,7 asserting that “[t]he UCCJEA is clear that notice and a meaningful

opportunity to participate in the jurisdictional decision are mandatory before

jurisdiction can be relinquished.” Father also argues “[t]he UCCJEA . . . requires

that before a court determines it is an inconvenient forum . . . , it must allow the

parties to submit information on the relevant factors the court must consider.”

(emphasis in original). Father’s argument is misplaced.

       It was the Michigan court that determined it should relinquish jurisdiction to

North Carolina, as is contemplated by the statute: “the original decree state is the

sole determinant of whether jurisdiction continues.” Official Comment to N.C. Gen.

Stat. § 50A-202. To the extent that Father’s due process rights were frustrated or

denied, they were denied in Michigan, not North Carolina.

       Father also argues that the UCCJEA and the North Carolina Juvenile Code

required notice to him in order for the trial court to assert subject matter jurisdiction




       7  To the extent that Father contends his Constitutional rights to due process were violated
prior to the termination hearing, we note that he was served with process and represented by counsel
in the termination hearing and failed to raise any such arguments. Such arguments not raised at a
termination hearing may not be raised for the first time on appeal. In re T.P., 217 N.C. App. 181, 186,
718 S.E.2d 716, 719 (2011).

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following its nonsecure custody orders and before the hearing adjudicating the

children abused, neglected, and dependent, as he was never served with the juvenile

petitions prior to said hearing. We have previously held, however, that “there is no

legal basis for the . . . suggestion that the trial court lacked jurisdiction in the

termination of parental rights proceeding because the father was not served with a

summons in the initial adjudication proceeding.” E.X.J., 191 N.C. App. at 45, 662

S.E.2d at 31. The lack of service on Father prior to earlier custody and adjudication

proceedings does not defeat the valid service and notice provided him for the

termination hearing.

      3. Petition for Writ of Certiorari

      Father’s petition for certiorari challenging the trial court’s three permanency

orders argues there was insufficient evidence to support findings ceasing

reunification efforts and further asserts that the trial court failed to make findings of

fact required by N.C. Gen. Stat. §§ 7B-906.1 & 7B-906.2. But the Termination Order

included findings—unchallenged by Father—that support cessation of reunification

efforts, and the contents of termination orders cure defects in a prior permanency

planning order. In re L.M.T., 367 N.C. 165, 170, 752 S.E.2d 453, 456-57 (2013). See

also In re D.C., 236 N.C. App. 287, 292, 763 S.E.2d 314, 317-18 (2014) (concluding

inadequate findings to support cessation of reunification efforts in a permanency

planning order were cured by a later termination of parental rights order that “made



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additional detailed findings of fact . . . continuing up to the time of the hearing on

termination of parental rights.”). We also note that Father has failed to include the

transcripts of the permanency planning hearings or request their inclusion via a

motion to this Court pursuant to N.C. R. App. P. 9(b)(5)(b); we are obligated by the

absence of the transcripts to consider the court’s findings at those hearings as

supported by competent evidence. See Stone v. Stone, 181 N.C. App. 688, 691, 640

S.E.2d 826, 828 (2007). We therefore deny Father’s petition in our discretion.

B. Mother’s Appeal

      By the plain text of the statute, termination of parental rights is permitted

upon a finding of any one ground enumerated in N.C. Gen. Stat. § 7B-1111(a). The

trial court in this action found four grounds existed as to Mother: (1) dependency; (2)

abuse or neglect; (3) Mother’s lack of reasonable progress to correct conditions that

led to DHHS’ petitions for custody; and (4) Mother’s failure to pay for the cost of her

children’s care. Appellant challenges each of these grounds. However, because the

trial court’s findings were based on clear, cogent, and convincing evidence of

dependency as defined in N.C. Gen. Stat. § 7B-1111(a)(6), we uphold the order

terminating Mother’s parental rights and do not reach her challenges regarding the

other three grounds.

      In reviewing findings of fact in a termination of parental rights order, we must

determine “whether the trial court’s findings of fact are based upon clear, cogent, and



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convincing evidence . . . .” In re I.T.P-L., 194 N.C. App. 453, 461, 670 S.E.2d 282, 287

(2008) (citation omitted). If clear, cogent, and convincing evidence is present in the

record to support a finding, it will not be disturbed, even in the face of evidence to the

contrary. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). Legal

conclusions drawn from the court’s factual findings are reviewed de novo. In re S.N.,

194 N.C. App. 142, 146, 669 S.E.2d 55, 59 (2008). As for a determination by the trial

court that termination is in the best interests of the child, we review for abuse of

discretion where it is “manifestly unsupported by reason.” In re J.A.A., 175 N.C. App.

66, 75, 623 S.E.2d 45, 51 (2005).

      Mother’s sole challenge to the trial court’s order finding the children dependent

disputes a detailed finding of her history of mental illness and inconsistent treatment.

Mother cites the lack of evidence showing the status of her mental health at the time

of her hearing and points to the trial testimony of an unlicensed “Peer Support

Specialist” that Mother’s mental health had improved. As a result, Mother argues,

“DHHS did not prove by clear and convincing evidence that the condition still

rendered her incapable of parenting . . . .”

       “[I]t [is] the trial court’s responsibility to weigh the conflicting testimony and

make appropriate findings of fact.” In re J.C., 236 N.C. App. 558, 562, 783 S.E.2d

202, 205 (2014). Here, there was ample documentary evidence and sworn testimony

from a DHHS social worker from which the trial court could resolve any conflicting



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testimony by the Peer Support Specialist. While it is true that the last clinical

assessment of Mother was approximately a year prior to the termination hearing, we

have previously held that a psychological evaluation conducted a year prior to a

termination hearing can support the termination of parental rights where “the

persistence of her personality problems characterized in her psychological evaluation

as ‘not easily amenable to change[,]’ together with her lack of mental health

treatment, constituted clear, cogent, and convincing evidence that her mental health

problems had not changed significantly since the evaluation.” In re V.L.B., 168 N.C.

App. 679, 685, 608 S.E.2d 787, 791 (2005). This was so irrespective of recent therapy.

Id. at 685, 608 S.E.2d at 791.

      The record here is sufficiently analogous to V.L.B. Mother’s initial mental

health assessment in October 2014 indicated that she suffered from recurring severe

depression and PTSD. An assessment by a licensed psychologist two months later

stated:

             [U]ntil she has better control over her depression and
             emotional neediness, she will continue to place herself and
             her children at risk for further harm. . . . [Mother] will
             need assistance. . . . At present, she is ill equipped
             emotionally and cognitively to accomplish [her treatment]
             goals independent of ongoing support, guidance, and
             therapy. . . . She needs medication to address her
             depressive symptomatology. And . . . she needs therapy to
             help her develop more effective coping strategies. . . .

Mother did not follow these recommendations. A year later, another mental health



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assessment indicated Mother continued to suffer from these same conditions and

again recommended therapy. Following the second recommendation and prior to the

termination hearing, Mother still did not participate in therapy, but instead

misrepresented the status of her treatment to DHHS. Mother’s longstanding mental

health conditions and her repeated failures to follow recommendations for treatment

necessary to care for her children safely constituted clear, cogent, and convincing

evidence to support the trial court’s findings of dependency.

       Mother next contends that the trial court abused its discretion in determining

that termination of her parental rights would be in the best interests of Robert and

Riley.8 Mother challenges the findings that their likelihood of adoption remains high,

that Robert is showing “great improvement” in foster care, and that Riley is in “a

loving, nurturing, and safe environment.” However, documentary evidence produced

by the children’s guardian ad litem notes that “[w]ith therapy, this GAL believes

[Robert and Riley] will be able to be adopted. . . . [Robert] has a respectable bond with

[redacted],9 his caretaker. . . . [Robert] told this GAL he likes living with [redacted].”

Further, the guardian ad litem supervisor testified at trial that “with the

continuation of appropriate therapies, I believe that [Robert and Riley] will be

adoptable,” and that they had developed positive bonds with their caretakers. In light



       8  Mother concedes that the trial court did not err in concluding that termination of parental
rights was in the best interests of the other minors.
        9 The name of Robert’s caretaker has been removed to protect his privacy.



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of this evidence, we cannot hold that the challenged findings were manifestly

unsupported by reason.

      Mother also contends that the likelihood of adoptability is low given Robert’s

and Riley’s past behavioral problems and urges us to follow our decision in In re

J.A.O., 166 N.C. App. 222, 601 S.E.2d 226 (2004). That decision is inapposite. The

teenage juvenile in J.A.O. had been in foster care for fourteen years, transferred

caretakers nineteen times, lacked sufficient support, had a history of physical and

verbal aggression, and suffered from a total of six medical conditions, both physical

and mental. 166 N.C. App. at 227-28, 601 S.E.2d at 230. Indeed, the guardian ad

litem in that case urged against adoption, and the mother “had made reasonable

progress to correct the conditions that led to the petition to terminate her parental

rights.” Id. at 224-25, 601 S.E.2d at 228-29.

      Finally, Mother contends that the trial court’s failure to make detailed findings

concerning Robert and Riley’s behavioral issues runs afoul of the “[a]ny relevant

consideration” language of N.C. Gen. Stat. § 7B-1110(a)(6). However, the order does

contain a finding addressing this behavior, stating that “[t]hey have behavioral issues

related to the trauma they experienced prior to removal. With continued therapeutic

treatment, the likelihood of their adoption remains high.” Further, “ ‘[t]he trial court

is not required to make findings of fact on all the evidence presented, nor state every

option it considered’ in arriving at its disposition under N.C. Gen. Stat. § 7B-1110.”



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In re D.LW., 241 N.C. App. 32, 43, 773 S.E.2d 504, 511 (2015), reversed in part on

separate grounds, 368 N.C. 835, 788 S.E.2d 162 (2016) (quoting In re J.A.A., 175 N.C.

App. 66, 75, 623 S.E.2d 45, 51 (2005)). Mother’s argument on this point is overruled.

As a result, we hold the trial court did not abuse its discretion in finding termination

of Mother’s parental rights was in the best interests of Robert and Riley.

                                   IV. Conclusion

      We hold that the district court properly exercised subject-matter jurisdiction

regarding Father’s parental rights on a temporary emergency basis and, once

Michigan released continuing and exclusive jurisdiction over Father’s children, under

jurisdiction to modify a foreign court’s determination. We further hold that despite

Father’s lack of notice of the initial custody proceedings, he was not denied due

process in the termination proceeding because he was properly served with the

petition and was represented by counsel in the proceeding. Finally, we hold that the

district court did not err in its adjudication of the children or in its termination of

Father’s and Mother’s parental rights.

      AFFIRMED.

      Chief Judge MCGEE and Judge TYSON concur.




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