An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-138
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 17 June 2014


IN THE MATTER OF:
                                              Beaufort County
      M.S.                                    No. 11 JA 91


      Appeal by respondents from order entered 7 November 2013 by

Judge Regina R. Parker in Beaufort County District Court.                     Heard

in the Court of Appeals 29 May 2014.


      Kimberly T. Edwards for petitioner-appellee Beaufort County
      Department of Social Services.

      Kilpatrick Townsend & Stockton LLP, by John M. Moye, for
      guardian ad litem.

      Edward Eldred for respondent-appellant mother.

      Sydney Batch for respondent-appellant father.


      STROUD, Judge.


      Respondent-parents appeal from an order terminating their

parental rights to the minor child M.S. (“Mindy”).1                   Because the

termination order lacks sufficient findings of fact to support

the trial court’s ultimate determination under N.C. Gen. Stat. §


1
  To protect the juvenile’s identity and for ease of reading we
will refer to her by pseudonym.
                                        -2-


7B-1111(a)(1), (2), and (6) (2013), we vacate the termination

order and remand.

                   I.    Petition for Writ of Certiorari

       Respondent-mother        has   filed      a   petition     for         writ    of

certiorari asking this Court to review the termination order

notwithstanding her failure to designate the order from which or

court to which her appeal is taken, in accordance with N.C.R.

App. P. 3(d), as well as her failure to serve her notice of

appeal pursuant to N.C.R. App. P. 3(a), (e), and 26(c)-(d).                          See

N.C.R. App. P. 3.1(a); N.C. Gen. Stat. § 7B-1001(a)(6), (b)

(2013).     Respondent-mother asks that she not be deemed to have

“forfeit[ed] her right to appeal due to her attorney’s error in

drafting    a   notice   of   appeal.”        See    N.C.R.   App.       P.   21(a)(1)

(authorizing review by writ of certiorari “when the right to

prosecute an appeal has been lost by failure to take timely

action”).

       We conclude the appeal is properly before us.                      It is true

that    “[a]n    appellant’s      failure       to   designate       a    particular

judgment or order in the notice of appeal generally divests this

Court of jurisdiction to consider that order.”                   Yorke v. Novant

Health,    Inc.,   192   N.C.    App.    340,    347,   666   S.E.2d          127,   133

(2008), disc. rev. denied, 363 N.C. 260, 677 S.E.2d 461 (2009).
                                         -3-


Here, however, respondent-mother gave timely notice of appeal

from

            all Findings of Fact, Conclusions of Law and
            Orders of the Court entered pursuant to the
            Beaufort   County  District   Court  hearing
            regarding   termination   of   her  parental
            rights, said hearing having been held on
            September 27, 2013 and resulting in the
            termination of her parental rights regarding
            the minor child, [Mindy].

Although respondent-mother did not identify the order by entry

date or authoring judge, we believe her intent to appeal from

the 7 November 2013 termination order “can be fairly inferred

from the notice[.]”        Chee v. Estes, 117 N.C. App. 450, 452, 451

S.E.2d   349,   351   (1994).          Nor   is     there    any   indication      that

Beaufort County Department of Social Services (“BCDSS”) or the

guardian ad litem (“GAL”) was “misled by [her] mistake.”                     Id.

       Moreover,   the     lack   of    proof       of   service   of   respondent-

mother’s    notice    of    appeal      does       not   deprive   this    Court    of

jurisdiction, absent an objection by appellees.                    Blevins v. Town

of West Jefferson, 182 N.C. App. 675, 682-83, 643 S.E.2d 465,

469-70 (Geer, J., dissenting), adopted per curiam, 361 N.C. 578,

653 S.E.2d 392 (2007).           Likewise, respondent-mother’s failure to

designate   the    court    to    which      her    appeal    is   taken   does    not

constitute a jurisdictional defect, as “this Court is the only
                                                -4-


court   with    jurisdiction             to    hear      [her]    appeal[.]”          State    v.

Ragland, __ N.C. App. __, __, 739 S.E.2d 616, 620, disc. review

denied,   __    N.C.        __,    747    S.E.2d         548   (2013).       Therefore,       we

dismiss the petition for writ of certiorari as moot.

                                         II.    Background

      BCDSS obtained non-secure custody of three-week-old Mindy

on 9 December 2011, after filing a petition alleging that she

was a neglected juvenile.                     The petition reported, inter alia,

that respondent-mother lacked the ability to perform “routine

tasks   of     baby        care,   such        as    diapering,        feeding,       clothing,

bathing and consoling the child.”                         BCDSS further alleged that

respondent-father           had    a     “long      history”      of     assaulting        family

members, including his romantic partners and their children, and

was subject to a domestic violence protective order (“DVPO”)

entered in April 2011 on behalf of his six-year-old son, for

bloodying      the    child’s       nose        after     he     choked    on    some      liquid

medication.           The      record          on    appeal      shows     that       in    2000,

respondent-father           pled guilty to habitual misdemeanor assault

for   beating        his    girlfriend’s            seven-year-old        son,    J.H.,       and

consented to entry of an adjudication of neglect as to his five-

month-old daughter, R.S., based on his shaking of the child.

Respondent-father           pled    guilty          to   another    charge       of    habitual
                                           -5-


misdemeanor assault in 2010 for assaulting respondent-mother.

       The trial court adjudicated Mindy a neglected juvenile on

10 October 2012.            The court ceased reunification efforts and

changed the child’s permanent plan to adoption on 16 September

2013,   finding      “that    [respondent-]mother        remains     incapable    of

making the changes required to remove the risk of harm to her

child in her home, and [respondent-]father remains unwilling to

do so.”

       BCDSS   filed    a    motion   to    terminate    respondents’      parental

rights on 14         March 2013, alleging          the following      grounds for

termination as to both respondents:                (1) neglect; (2) failure to

make reasonable progress to correct the conditions leading to

Mindy’s removal from their care; and (3) dependency.                      N.C. Gen.

Stat. § 7B-1111(a)(1), (2), (6).                 BCDSS alleged a fourth ground

for terminating respondent-mother’s parental rights under N.C.

Gen. Stat. § 7B-1111(a)(3) (2013).                After hearing evidence on 27

September 2013, the trial court adjudicated the existence of

each    of   these     grounds   for       termination   and    determined      that

termination     of    respondents’     parental      rights    was   in   the   best

interest of the minor child.

                              III. Standard of Review

       Respondents     challenge      the    trial   court’s    adjudication      of
                                        -6-


grounds to terminate their parental rights under N.C. Gen. Stat.

§ 7B-1111(a).       In reviewing        an    adjudication under N.C. Gen.

Stat.   §   7B-1109(e)        (2013),   we    must    determine    whether     the

findings    of   fact    in   the   termination      order   are   supported    by

clear, cogent and convincing evidence, and whether the findings

support the order’s conclusions of law.                 In re Gleisner, 141

N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000).                    “If there is

[such] evidence, the findings of the trial court are binding on

appeal.”    In re McCabe, 157 N.C. App. 673, 679, 580 S.E.2d 69,

73 (2003).       Moreover, any unchallenged findings are binding.

Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).

We review the trial court’s conclusions of law de novo.                   In re

J.S.L., 177 N.C. App. 151, 154, 628 S.E.2d 387, 389 (2006).

                        IV.   Sufficiency of Fact-Finding

    Both respondent-mother and respondent-father argue that the

trial court failed to make necessary findings of fact in support

of its adjudication of grounds for termination under N.C. Gen.

Stat. § 7B-1111(a)(1), (2), and (6).            We agree.

    The trial court found the following facts by clear, cogent,

and convincing evidence:

            4.   . . . [Mindy] was born [i]n . . .
            November, 2011 . . . .     Her parents . . .
            remain married at this time.
                              -7-



         5.   [Mindy] is the second of three children
         born to Mother and the fifth of six children
         born to Father. None of the children are in
         either parent’s physical or legal custody.

         6.   Father has significant anger issues and
         history of assaulting domestic partners and
         children left in his care. Father has been
         convicted of assaulting Mother and Mother
         has obtained two DVPO’s against Father and
         then dismissed each case.      Mother’s last
         DVPO against Father was in July of 2013 when
         mother   was  in   the  last   trimester  of
         pregnancy.

         7.   Mother is mentally retarded and has a
         full scale I.Q. of 63. Mother functions at
         age equivalencies from 2 to 8 years old.
         Her overall coping skills are equivalent to
         that of a 3 1/2 year old child.       Mother
         lacks basic child care skills such as mixing
         formula, properly holding an infant, and not
         recognizing or responding to an infant[’]s
         needs.

         8.   [Mindy]   was   adjudicated   neglected,
         following a hearing which ended on September
         5, 2012.   BCDSS and [the guardian ad litem]
         expressed a willingness to allow the parents
         an    opportunity    to    intensify    their
         reunification efforts.    The court ordered
         Father to obtain a psychological evaluation
         within the next 90 days . . . .

         9.   Mother has worked under a case plan
         since January of 2012. Mother completed two
         separate parenting courses but her AAPI[2]
         showed no improvement in her parenting
         skills.    Mother attended some individual

2
   The Adult Adolescent Parenting Inventory was prepared by
respondents’ parenting class facilitators at Cornerstone Church.
                                     -8-


            therapy but still lives in the home with
            Father and fails to appreciate the danger
            that Father represents to her or any child
            in her home.    BCDSS has repeatedly offered
            to take Mother to a domestic violence
            shelter but Mother refuses this assistance.

            10. Father has worked under a case plan
            since January of 2012.    Father was ordered
            to obtain a psychological evaluation and has
            failed to do so.       Father completed two
            separate parenting courses but his AAPI
            showed no improvement in his parenting
            skills.   Father completed anger management
            therapy but continues to excuse his violent
            conduct and does not accept responsibility
            for his actions.   The most recent DVPO was
            entered against Father in July of 2013 after
            Father   had   completed   Anger  Management
            Therapy.

            11. On July 12, 2013, the court entered an
            order for BCDSS to cease reunification
            efforts and proceed to clear [Mindy] for
            adoption . . . . No progress has been made
            since that time.

            12. [Mindy] has been in foster care since
            she was three weeks old. Her foster parents
            are the only parents she has ever known and
            she is very bonded with them. . . .

Based on these findings, the count entered a single conclusion

of law:     “Grounds exist to terminate the parental rights of the

Mother and Father under N.C.G.S. Sections           7B-1111(a)(1)[,](2)

and (6).”

A.   Neglect under G.S. 7B-1111(a)(1)

     Because    Mindy   had   been   placed   outside   the   home   since
                                      -9-


December 2011, an adjudication for neglect under N.C. Gen. Stat.

§ 7B-1111(a)(1) required findings of both a prior adjudication

of neglect and “a probability of repetition of neglect if the

juvenile were returned to her parents.”             In re Reyes, 136 N.C.

App. 812, 814-15, 526 S.E.2d 499, 501 (2000).             The trial court

made no findings regarding the probability of future neglect by

either respondent. Therefore, its findings were insufficient to

support its adjudication under N.C. Gen. Stat. § 7B-1111(a)(1).

B.   Lack of Reasonable Progress under G.S. 7B-1111(a)(2)

     Under N.C. Gen. Stat. § 7B-1111(a)(2), a parent’s rights

may be terminated if the district court determines that (1) the

minor child has been willfully left by the parent in foster care

for over 12 months and (2) as of the time of the hearing, the

parent   has    failed    to   make    reasonable    progress   under   the

circumstances to correct the conditions which led to the child’s

removal from the home.         In re O.C. & O.B., 171 N.C. App. 457,

464-65, 615 S.E.2d 391, 396, disc. rev. denied, 360 N.C. 64, 623

S.E.2d 587 (2005).       To justify termination of parental rights on

this ground, the trial court must find that the parent has acted

willfully.     See In re T.M.H., 186 N.C. App. 451, 455, 652 S.E.2d

1, 3, cert. denied and disc. rev. denied, 362 N.C. 87, 657

S.E.2d 31 (2007).        Here, “[t]he order before us contains no
                                            -10-


findings     of    willfulness.        In    the   absence      of    a     finding    of

willfulness, the trial court’s order does not establish grounds

for termination” and must be reversed as to this ground.                        Id.

C.   Dependency under G.S. 7B-1111(a)(6)

     The district court also entered an adjudication based on

dependency under G.S. 7B-1111(a)(6).                 As applied to respondents,

such an adjudication requires findings of fact that “address

both (1) the parent’s ability to provide care or supervision,

and (2) the availability to the parent of alternative child care

arrangements.”          In re P.M., 169 N.C. App. 423, 427, 610 S.E.2d

403, 406 (2005) (reversing adjudication where the “trial court

never addressed the second prong of the dependency definition”).

     Although finding 7 alludes to respondent-mother’s lack of

child-rearing       skills,      the    district    court      did    not    explicitly

assess     either       respondent’s         ability      to    provide       care      or

supervision       for    Mindy    and       made   “no    finding     that     [either]

respondent        lacked    ‘an    appropriate           alternative        child     care

arrangement.’” Id.         at 428, 610 S.E.2d at 407.                Accordingly, “we

must reverse the lower court . . . and remand for entry of

findings as to the ability of the parent to provide care or

supervision       and    the   availability        of     alternative       child     care
                                             -11-


arrangements.”            In re B.M., 183 N.C. App. 84, 90, 643 S.E.2d

644, 648 (2007).

                                      V.     Conclusion

    Although           the     evidence    in    the   record    is   sufficient    to

support adequate findings on any number of grounds, “[w]hen a

trial court is required to make findings of fact, it must find

the facts specially . . . [and] through processes of logical

reasoning from the evidentiary facts find the ultimate facts

essential to support the conclusions of law.”                     In re Harton, 156

N.C. App. 655, 660, 577 S.E.2d 334, 337 (2003) (citations and

quotation         marks       omitted).         Because   the     district     court’s

termination order lacks the necessary findings, we must “vacate

the order and remand . . . with instructions to make appropriate

findings      .    .      .    and   then,      if   appropriate,     to    articulate

conclusions of law that include the grounds under N.C. [Gen.

Stat.] § 7B-1111(a) which form the basis for termination.”                           In

re T.M.H., 186 N.C. App. at 456, 652 S.E.2d at 3.                            The trial

court   may       receive      additional     evidence    on    remand,    within   its

sound discretion.             Id.    In light of our holding, we decline to

address respondents’ remaining arguments on appeal.                        See id.; In

re B.M., 183 N.C. App. at 90, 643 S.E.2d at 648.

    VACATED and REMANDED.
                         -12-


Judges CALABRIA and DAVIS concur.

Report per Rule 30(e).
