An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA03-362


Filed: 20 January 2004

a minor child,

v .                             Caldwell County    
                                No. 01 J 26        &nbs p;           

    Appeal by respondent from order entered 22 August 2002 by Judge Robert M. Brady in Caldwell County District Court. Heard in the Court of Appeals 19 November 2003.

    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.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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