I must respectfully dissent from the majority. I would hold that, because Chapter 7B is silent on the matter, Rule 15 of the North Carolina Rules of Civil Procedure permits the amendment of the petition in conformity with the evidence.
I. Additional Facts
The hearing of this matter was conducted on two separate days, 16 May 2007 and 4 June 2007. The first witness for the Department of Social Services ("DSS") was Andrea Biffle, a social worker employed by DSS. During Ms. Biffle's testimony, DSS moved to amend its pleadings to conform to the evidence and add an additional grounds for termination: that the parents had willfully left the juveniles in foster care for more than 12 months without showing reasonable progress under N.C. Gen.Stat. § 7B-1111(a)(2). The guardian ad litem had no objection. Counsel for respondent mother objected, contending that it was a substantial change in the petition, with no prior notice, and that she needed time to prepare a defense. There was no objection to the testimony upon which the motion to amend was based as being outside the issues raised by the pleadings. The trial court allowed the amendment.
On 16 May 2007, DSS presented five witnesses, and respondent mother presented one witness. When the hearing resumed on 4 June 2007, respondent mother presented the testimony of two additional witnesses, and DSS presented four witnesses in rebuttal. At no time during the balance of the first day of hearings or during the entire second day of hearings did respondent mother argue or contend that she had insufficient time to prepare to meet the new allegations made under N.C. Gen.Stat. § 7B-1111(a)(2).
II. Analysis
It is clear that, when there are procedures set forth in Chapter 7B governing termination *259of parental rights proceedings, those procedures must control over those set forth in the North Carolina Rules of Civil Procedure. In re S.D.W., ___ N.C.App. ___, ___, 653 S.E.2d 429, 431 (2007) (recognizing that "where the juvenile code sets forth specific procedures governing termination actions, those procedures apply to the exclusion of the Rules of Civil Procedure.") However, because "a termination of parental rights proceeding is civil in nature, it is governed by the Rules of Civil Procedure, unless otherwise provided." In re McKinney, 158 N.C.App. 441, 445, 581 S.E.2d 793, 796 (2003) (citations and internal quotations omitted); see also S.D.W., ___ N.C.App. at ___, 653 S.E.2d at 432 (stating that "where the juvenile code does not identify a specific procedure to be used in termination cases, the Rules of Civil Procedure will fill the procedural gaps that Article 11 [of Chapter 7B] leaves open.").
Chapter 7B is devoid of any provision dealing with the amendment of pleadings in termination of parental rights proceedings. Clearly, there must be a mechanism for the amendment of pleadings. Otherwise, petitioner would be required to dismiss and refile to correct pleading defects, a procedure that would only serve to needlessly delay these time-sensitive cases. See N.C. Gen.Stat. § 7B-1100(2) (2007) (recognizing the necessity of permanency for juveniles at the earliest possible age). I would hold, in the absence of provisions in Chapter 7B dealing with amendment of pleadings in termination proceedings, that Rule 15 of the North Carolina Rules of Civil Procedure controls.
Subsection (b) of Rule 15 governs amendments to conform with the evidence. The first sentence of this section provides that when issues not raised in the pleadings are tried by the express or implied consent of the parties, then they are to be treated as being raised in the pleadings. N.C. Gen.Stat. § 1A-1, Rule 15(b) (2007).
[W]here no objection is made to evidence on the ground that it is outside the issues raised by the pleadings, the issue raised by the evidence is nevertheless before the trial court for determination. The pleadings are regarded as amended to conform to the proof even though the defaulting pleader made no formal motion to amend.
Mangum v. Surles, 281 N.C. 91, 98, 187 S.E.2d 697, 701-02 (1972). The Supreme Court went on to hold that "amendments should always be freely allowed unless some material prejudice is demonstrated[.]" Id. at 98-99, 187 S.E.2d at 702.
In the instant case, respondent mother failed to object that the testimony was outside the pleadings. She fails to assert material prejudice in her brief. Indeed the record shows there to be none. The conforming amendment took place during the first witness on the first day of the hearings. The trial was not concluded until nearly three weeks later. Respondent mother had that period of time in which to prepare a response to the amended allegation, and at no time during the 7 June hearing did respondent assert that more time was needed.
Because there was no material prejudice and Chapter 7B does not address the matter of amending pleadings in a termination proceeding, I respectfully dissent.