IN THE MATTER OF:
MALEKI ALEXANDER EAKER,
a minor child,
THE CALDWELL COUNTY DEPARTMENT
OF SOCIAL SERVICES,
Petitioner
v
.
Caldwell County
No. 01 J 26 &nbs
p;
JAMES DEAN EAKER,
Respondent
Lauren Vaughan, for petitioner-appellee.
Hall & Hall, P.C., by Douglas L. Hall, for respondent-
appellant.
CALABRIA, Judge.
James Dean Eaker (“respondent”) appeals from a 22 August 2002
order by the Caldwell County District Court terminating his
parental rights to his son, Maleki Alexander Eaker (the “minor
child”). On appeal, respondent argues the trial court proceeding
violated his constitutional rights and the findings of fact
regarding the grounds for terminating respondent's rights were not
supported by clear, cogent, and convincing evidence. We affirm.
The minor child was born on 20 February 2001 to respondent and
Ronda Ann Adkins Eaker (“Mrs. Eaker”). That same day, respondentand Mrs. Eaker were contacted by Julia Borrero in her capacity with
the Caldwell County Department of Social Services (“DSS”) who had
received a report from Caldwell Memorial Hospital regarding the
environment for the minor child. After investigating the
hospital's report alleging domestic violence, substance abuse and
the criminal histories of respondent and Mrs. Eaker, DSS
substantiated the allegations. On 21 February 2001, DSS filed a
juvenile petition based on dependency and obtained a nonsecure
custody order premised upon a determination that the juvenile was
exposed to a substantial risk of physical injury and the parents
were unable to provide adequate supervision or protection.
In the juvenile adjudication order finding the child was a
dependent juvenile pursuant to N.C. Gen. Stat. § 7B-101(9),
respondent stipulated to the facts alleged in the 26 June 2001
juvenile petition. The facts included that in March 2001,
approximately three months before the child's birth, respondent was
arrested and charged with felony attempted murder, felony robbery
with a dangerous weapon, three counts of habitual felon status,
felony possession of a firearm by a felon, and felony assault with
a deadly weapon with intent to kill or inflict serious injury.
Mrs. Eaker faced similar charges and stipulated that she had used
illegal drugs while pregnant with the minor child. Based on these
stipulations, the minor child was adjudicated dependent, and the
trial court proceeded to the disposition phase.
At the disposition phase of the dependency hearing, the trial
court received and reviewed reports from DSS and the Guardian AdLitem (“GAL”) for the minor child. The court adopted the reports
and incorporated them into the trial court's order as the court's
findings of fact. These reports set forth, inter alia, that
respondent was currently drawing social security insurance benefits
for mental and physical conditions, had well-documented incidents
of domestic violence, substance abuse, and mental health issues,
had criminal histories, and was currently incarcerated for pending
felony charges. These charges precluded the possibility, in the
foreseeable future, of providing supervision, care, or placement of
the child. The report stated that “the chronicity and severity of
the histories for both parents, precludes the likelihood that
either . . . would be able to . . . parent a child safely and
effectively.” DSS recommended, and the trial court agreed, that
DSS retain custody of the minor child, that the child be placed in
a foster home, and that efforts to reunite the family would be
futile or inconsistent with the minor child's need for a safe,
permanent home within a reasonable period of time. Accordingly,
the trial court ordered that reunification efforts cease and set
the matter for a permanency planning hearing.
On 9 January 2002, the court conducted a permanency planning
review for the minor child and found that respondent and Mrs. Eaker
were still incarcerated, that the minor child was doing well in
foster care, and that a home study with the paternal grandmother
was completed but had been denied. An additional home study with
the maternal grandmother was ordered but refused by her on the
grounds that she did not wish to be a placement option for theminor child. The court ordered DSS to pursue adoption for the
minor child.
In the final permanency planning review order, filed on 19
April 2002, the court found that respondent had been sentenced on
the charged felonies for approximately twenty years and would not
be a viable placement option for the minor child. The trial court
ordered DSS to file a petition for termination of parental rights
to be heard on 29 May 2002. DSS' petition alleged grounds existed
to terminate respondent's parental rights pursuant to N.C. Gen.
Stat. § 7B-1111(2) and (6). DSS alleged respondent had been
diagnosed with anti-social personality disorder, a psychological
diagnosis that rendered respondent incapable of providing proper
care and supervision and that there was a reasonable probability
that such incapacity would continue for the foreseeable future. In
addition, DSS asserted respondent was presently incarcerated for
numerous felony charges. Prior to the actual hearing on the matter
of termination of parental rights, Mrs. Eaker relinquished her
parental rights to the minor child, and the time in which to revoke
the relinquishment expired.
A termination of parental rights hearing occurred on 4 June
2002 and 21 August 2002. Present at the proceeding were
respondent, his attorney, and his GAL via audio and video
conferencing. The minor child's GAL and attorney advocate and the
attorney for DSS were present in the courtroom. On its own motion,
the trial court determined video conferencing was appropriate due
to a number of factors based on respondent's previous conductincluding the following: outbursts in the courtroom, resistance to
directions of law enforcement officers while in custody and in the
courtroom, unrestrained diatribes disrupting the proceedings, and
other conduct endangering participants and members of the public in
the courtroom and subjecting respondent to contempt. For
respondent's best interests and protection as well as the
protection of others, the trial court proceeded with the
arrangements for video conferencing. After taking judicial notice
of the prior orders and the incorporated documents and records, the
trial court found the minor child had been in the custody of DSS
for his entire life and no demonstration by respondent had been
made showing reasonable progress. In addition, the trial court
noted the history of domestic violence, respondent's anti-social
personality disorder, and his convictions and incarceration. Based
on these findings, the trial court concluded as a matter of law
that the minor child was a dependent juvenile and respondent had
left the minor child placed out of the home since 21 February 2001
without correcting the conditions resulting in the child being
placed outside of the home. Under N.C. Gen. Stat. § 7B-1111(2) and
(6), the court concluded grounds existed to terminate respondent's
parental rights and proceeded to disposition. In the disposition
phase of the termination of parental rights proceeding, the trial
court incorporated the previous findings of fact, received the
reports of DSS and the minor child's GAL regarding the efforts made
by DSS and incorporated those reports as additional findings of
fact regarding the best interests of the child. Based on thesefindings of fact, the trial court concluded as a matter of law that
it was in the best interests of the child to terminate respondent's
parental rights and ordered accordingly. Respondent appeals.
On appeal, respondent asserts (I) he was deprived of his
constitutional right to confront and cross-examine witnesses
against him because he was not present except by a video and audio
conferencing connection; (II) any finding that respondent willfully
left the minor child in foster care or placement outside the home
pursuant to N.C. Gen. Stat. § 7B-1111(2) was erroneous due to the
fact that respondent was incarcerated during that time period; and
(III) findings that grounds existed to terminate respondent's
parental rights pursuant to N.C. Gen. Stat. § 7B-1111(6) were
erroneous because there was not clear, cogent, and convincing
evidence of said grounds presented at the adjudicatory hearing.
I. Constitutional Right to Confrontation
Respondent, in his first assignment of error, asserts the
trial court's choice, to proceed with the termination of parental
rights proceeding despite the fact that respondent was not present
but was able to communicate only through video conferencing
installed by the trial court, denied him the right of confrontation
and to cross-examination, which resulted in the procedure being
fundamentally unfair in violation of his due process rights.
Accordingly, respondent maintains his position is analogous to
where a parent is not present but represented by counsel. In such
cases, this Court has used the factors set forth in Mathews v.
Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18 (1976) to determine whetherthe procedures used by the trial court rendered the proceedings
fundamentally unfair. In re Murphy, 105 N.C. App. 651, 414 S.E.2d
396 (1992). These factors are as follows: “the private interests
affected by the proceeding; the risk of error created by the
State's chosen procedure; and the countervailing governmental
interest supporting use of the challenged procedure.” Santosky v.
Kramer, 455 U.S. 745, 754, 71 L. Ed. 2d 599, 607 (1982) (citations
omitted). Because both parties correctly agree that, regarding the
first factor, “[a] parent's interest in the accuracy and justice of
the decision to terminate his or her parental status is [] a
commanding one[,]” our analysis is confined to the weight to be
assigned to the second and third factors. In re Quevedo, 106 N.C.
App. 574, 580, 419 S.E.2d 158, 161 (1992) (quoting Santosky, 455
U.S. at 759, 71 L. Ed. 2d at 610 (citation omitted)).
Regarding the third factor, the countervailing governmental
interest supporting use of the challenged procedure, we note the
trial court set forth in detail the reasons why it was using video
conferencing. These reasons included safeguarding the health of
those in the courtroom, participants in the hearing, and
respondent; outbursts and diatribes disrupting courtroom
proceedings; breaking chains restraining him; and resistance to
directions of law enforcement officers. This Court has already
established that the “State has an interest in ensuring a fair
hearing and a correct decision and protecting the dignity of the
courtroom [where a respondent's] conduct . . . severely disrupt[s]
the proceeding.” In re Faircloth, 153 N.C. App. 565, 574, 571S.E.2d 65, 71 (2002). This interest is further bolstered by the
State's interest in protecting the safety and well-being of those
in the courtroom both observing and participating in the
proceeding. Respondent's prior outbursts and resistance, both
verbal and physical, previously resulted in the disruption of
courtroom proceedings, subjected respondent to contempt, and
threatened the health and safety of those present. Accordingly,
this factor weighs heavily in favor of the video conferencing
procedure adopted by the trial court to secure the State's
interests.
Resolution of this issue, then, turns on whether the second
factor, the risk of error created by the State's chosen procedure,
weighs in favor of or against the challenged procedures. We find
the risk of error in the instant case to be minimal. While
respondent contends the exact scope and sufficiency of the video
and audio connection was unknown, we find the transcript replete
with evidence that respondent and his counsel were able to
effectively participate in the proceedings. At the beginning of
the proceedings, the trial court inquired and respondent affirmed
that he was able to hear the proceedings. While there were moments
when respondent stated he was unable to hear what had been said,
such moments were infrequent and promptly remedied by the court by
having the unheard statement repeated, to respondent's evident
satisfaction. Before the trial court admitted any item into
evidence, it allowed respondent to review the materials. Moreover,
when DSS sought to admit photographs not previously seen byrespondent's counsel, the trial court held the photographs up to
the video cameras and allowed respondent's counsel to examine the
witness regarding them. Subsequently, respondent offered no
objection to the introduction of the photographs. Finally,
respondent offered a statement, called witnesses, objected, and
otherwise fully participated in the hearing without any impairment
indicated by the record. The transcript makes clear that, by
enabling respondent to fully hear, observe, and participate in the
proceedings, the trial court appropriately balanced the State's
interests and respondent's interests. Because the record indicates
no diminished capacity to confront his accusers or examine and
cross-examine witnesses, despite the fact that respondent was not
allowed to physically be in the courtroom, the procedures adopted
by the trial court withstand the analysis set forth in Eldridge.
II. Grounds for Termination
Respondent also asserts the grounds upon which his parental
rights were terminated were not supported by clear, cogent, and
convincing evidence. Respondent argues on appeal that neither
ground upon which the trial court premised termination of his
parental rights can be upheld on appeal. Because we find the trial
court's determination of grounds to terminate respondent's parental
rights were sufficient under N.C. Gen. Stat. § 7B-1111(6) (2003),
we need not consider respondent's argument on appeal concerning
N.C. Gen. Stat. § 7B-1111(2) (2003).
A termination of parental rights proceeding takes place in two
phases: (1) the adjudication phase, governed by N.C. Gen. Stat. §7B-1109 (2003), and (2) the disposition phase, governed by N.C.
Gen. Stat. § 7B-1110 (2003). The adjudication phase requires the
petitioner to prove the existence of one or more of the statutory
grounds set forth in N.C. Gen. Stat. § 7B-1111 by “clear, cogent
and convincing evidence.” N.C. Gen. Stat. § 7B-1109(e) and (f)
(2003). “This intermediate standard is greater than the
preponderance of the evidence standard required in most civil
cases, but not as stringent as the requirement of proof beyond a
reasonable doubt required in criminal cases.” In re Montgomery,
311 N.C. 101, 109-10, 316 S.E.2d 246, 252 (1984). “A finding of
any one of the . . . separately enumerated [statutory] grounds is
sufficient to support a termination.” In re Pierce, 67 N.C. App.
257, 261, 312 S.E.2d 900, 903 (1984). On appeal, the determination
of the trial court to terminate a parent's rights should be
affirmed “where the court's findings of fact are based upon clear,
cogent and convincing evidence and the findings support the
conclusions of law.” In re Allred, 122 N.C. App. 561, 565, 471
S.E.2d 84, 86 (1996).
Relevant to the case at bar, the trial court made the
following findings of fact:
10. The Respondent, father has been diagnosed
with Anti Social Personality Disorder which
diagnosis renders him incapable of providing
proper care and supervision for the said child
and such incapacity is likely and reasonably
probable to continue for the foreseeable
future.
11. On March 14, 2002 the Respondent, father
was convicted of Assault With a Deadly Weapon
Intending to Kill or Inflict Serous Bodily
Injury and sentenced to 133 to 169 months of
incarceration. On the same date theRespondent, father was also convicted of
Robbery with Weapon and sentenced to 107 to
138 months of incarceration. This sentence
was to run consecutively at the conclusion of
the prior sentence for AWDWIKISI. The
Respondent, father received sentence
enhancement due to the determination by the
Court that he was a Habitual Felon. In
addition, the Respondent, father was convicted
of Larceny and received an active sentence of
15 to 18 months, which sentence was to run
concurrently with the first sentence. It is
probable that the Respondent, father will be
incarcerated for the entirety of the minority
of the said child.
Based on these findings, the trial court concluded as a matter of
law that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(6)
to terminate respondent's parental rights.
Respondent's argument on appeal, that findings of fact 10 and
11 were not supported by clear, cogent, and convincing evidence, is
premised solely on the assertion that respondent's mental health
records and criminal records were never introduced into evidence.
Respondent's mental health records were designated petitioner's
exhibit number 1. Respondent's criminal records were designated
petitioner's exhibit number 2. Respondent correctly notes that
petitioner laid a foundation for these documents but asserts such
documents were never received into evidence since respondent had
not, due to the video conferencing, had a chance to review them.
However, after a break and directly before the close of the
hearing, the following exchange took place:
[PETITIONER]: Your Honor, if I may, the matter
regarding the original records, your Honor,
reserve ruling until the opportunity for
[respondent's counsel] to review those. I
don't know what the situation is as to how
those records stand at this time. THE COURT: That's a valid point and I meant to
bring that up earlier. [Respondent's counsel],
did you have an opportunity to review those
records that were _ that I withheld the
admission of pending your opportunity to
review?
[RESPONDENT'S COUNSEL]: Judge, I did have [an]
opportunity. I reviewed them as best I could,
scanned them and it appears to be as the
records were prior _ what few I got to see
with the additions, and it appears they are in
order as far as I could tell with such short
opportunity to review them.
THE COURT: All right. The court will admit
them, I believe it was Petitioner's No. 1 and
2?
[PETITIONER]: That's correct, your Honor.
THE COURT: The court will admit Petitioner's
No. 1 and 2 into evidence.
No objection was made to the admission of these exhibits, and,
contrary to respondent's assertion on appeal, they were properly
admitted into evidence. Accordingly, this assignment of error is
overruled. Moreover, because respondent solely attacked findings
of fact 10 and 11 on these grounds, any other argument as to the
sufficiency of the supporting evidence is deemed abandoned. See In
re Faircloth, 153 N.C. App. at 576, 571 S.E.2d at 73 (internal
citations omitted) (holding “this Court's appellate review is
limited to those assignments of error set out in the record on
appeal and properly presented and discussed in the party's brief.
Questions not so raised and presented are deemed abandoned”);
N.C.R. App. P. 10(a) (2004); N.C.R. App. P. 28(a) (2004). Because
findings of fact 10 and 11 are supported by clear, cogent, and
convincing evidence and also support the conclusion of law that
proper grounds existed for termination of respondent's parental
rights under N.C. Gen. Stat. § 7B-1111(6), we need not addressrespondent's arguments concerning whether the trial court erred in
finding respondent's rights should be terminated under N.C. Gen.
Stat. § 7B-1111(2). The judgment of the trial court is affirmed.
Affirmed.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***