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1. Termination of Parental Rights_incarcerated father_deposition denied_no prejudice
There was no prejudice in the denial of respondent's motion to be deposed in a termination of parental rights proceeding where respondent was incarcerated in Tennessee. The findings of fact from a prior child custody and equitable distribution proceeding were binding by collateral estoppel and respondent would thus be precluded from challenging the factual allegations made by the mother in this proceeding. The father's interest is outweighed by the absence of any indication that his deposition would have led to a different result.
2. Termination of Parental Rights_order not timely reduced to writing_no prejudice
There was no prejudice in a termination of parental rights from the court's failure to reduce its order to writing within the statutory thirty-day time frame.
Eggers, Eggers, Eggers & Eggers, by Stacy C. Eggers, IV, for
Don Willey, for respondent-appellant.
Shawn Lambert (respondent) appeals from an order terminating
his parental rights to his minor child K.D.L. We affirm.
The Court stated, freedom of personal choice in matters of
family life is a fundamental liberty interest protected by the
Fourteenth Amendment. Id. at 753, 71 L. Ed. 2d at 606. When the
State moves to destroy weakened familial bonds, it must provide the
parents with fundamentally fair procedures. Id. at 754, 71 L. Ed.
2d at 606. This Court held in In re Murphy that due process does not
provide an incarcerated parent an absolute right to be transported
to a termination of parental rights hearing in order that he may be
present under either statutory or constitutional law. 105 N.C.
App. 651, 652-53, 414 S.E.2d 396, 397, aff'd, 332 N.C. 663, 422
S.E.2d 577 (1992). In that case, this Court relied on Lassiter v.
Dep't of Social Servs., 452 U.S. 18, 68 L. Ed. 2d 640 (1981). In
Lassiter, the United States Supreme Court affirmed a North Carolina
Supreme Court ruling that the appointment of counsel is not
constitutionally required in every TPR proceeding. This Court
stated in In re Murphy, a parent's absence from a termination
proceeding is of similar import. 105 N.C. App. at 654, 414 S.E.2d
at 398. Fundamental fairness does not require the State to
transport an incarcerated parent to a termination proceeding. Id.
The Court found the governmental interest equal to that of the
parent because transporting the father to the hearing from his
place of incarceration would have worked more than a mere
financial burden on the State. 105 N.C. App. at 655, 414 S.E.2d
at 398. The Court observed that, given that the respondent had
been incarcerated for sexual abuse of his children, [r]espondent's
presence at the hearing combined with his parental position of
authority over his children may well have intimidated his children
and influenced their answers if they had been called to testify.
Id., 414 S.E.2d at 398-99. Further, the Court pointed out that
transportation of the father would create a risk of escapejeopardizing the safety of the public and the officers assigned to
transport him. Id., 414 S.E.2d at 399.
The Court also stated, [d]uring the hearing, respondent's attorney did not argue that his client would be able to testify concerning any defense to termination, nor did he indicate how his client would be prejudiced by not being present. Id. at 655, 414 S.E.2d at 399.
Neither of those concerns exist in this case. Since the father was proposing a deposition, his daughter would have no contact with him, and he presented no escape risk. Apart from the expense, the only other possible governmental interest that we have been able to identify is the desire to expedite the proceedings in order to resolve matters for the child. Yet, in this case, the petition was filed 11 February 2004, counsel was appointed 3 March 2004, the motion for funds was filed 15 April 2004, and the TPR hearing was held 19 April 2004. The State's interest in prompt resolution of these proceedings would not have been significantly affected by a brief continuance to allow the taking of the father's deposition.
In short, the sole governmental interest affected by the taking of a deposition and the granting of a continuance is monetary. Since the mother, and not the State, filed the TPR petition, the State would only have had to pay the father's costs for the deposition. Such a deposition could have been done telephonically, resulting in a relatively modest expense. Forthese reasons, the father's interest substantially outweighs any interest of the State.
However, with regard to the second Eldridge factor, no risk of error was created by the denial of the father's motion. With respect to this factor, the father argues that his testimony could have denied point by point the allegations made by the mother in her petition. According to the father, [t]he only real means by which this father could defend himself was to be able to present his side of the story. The doctrine of collateral estoppel, however, would have precluded the father from challenging the factual allegations made by the mother.
The mother alleged as a basis for her petition that the father had neglected the child by (1) being in and out of jail for the last several years, (2) by having committed acts of domestic violence against the petitioner and in the presence of the minor child, as found by the court in prior proceedings, and (3) the father also threatened the minor child. She further alleged that the father threatened abuse toward the minor child and the minor child has been abused by respondent father pursuant to N.C. Gen. Stat. § 7B-101(1). In addition, the mother relied upon a willful failure to pay child support and willful abandonment of the child.
In an Order for Child Custody and Equitable Distribution, entered more than eight months before the TPR hearing and apparently not appealed, the district court made the following findings of fact:
10. After supervised visits with the [father] the child would be upset and crying. The child experienced nightmares, was nervous and refused to sleep by herself because she was fearful. The minor child required counseling.
11. That the defendant has violated the
Domestic Violence Protective Order on a
regular basis by sending numerous letters to
the [mother] and in that he has possessed a
firearm in violation of the order. That since
[father] has been incarcerated and not
visiting with the minor child, the child has
been more calm and less nervous.
. . . .
14. That the [father] is not fit and
proper to have visitation with the minor child
in that he has been mentally and emotionally
abusive and violent to the minor child and has
in fact threatened the minor child's life in
the past. That the [father] had a gun and
threatened to kill the child and all the
family in the presence of the minor child.
Since the father did not appeal this order, these findings of fact
were binding in the TPR hearing under the doctrine of collateral
estoppel. See In re Murphy, 105 N.C. App. at 655, 414 S.E.2d at
399 (Indeed, [counsel for the father] could point to no reason
that the respondent should be transported to the hearing other than
for respondent to contest his sexual assault convictions, an
impermissible reason.); In re Wilkerson, 57 N.C. App. 63, 70, 291
S.E.2d 182, 186 (1982) (holding that collateral estoppel properly
applied to findings made in a custody review hearing and rendered
those findings binding in a subsequent TPR hearing).
Further, the father has not argued his testimony would be necessary to address the petition's other allegations. He does not contest his criminal record, which was admitted at the TPR hearing. His answer admitted that he had not paid child support, butasserted no payments had been made because he was incarcerated and no payment plan had been established. In addition, the father claimed that he had not abandoned his child, but rather was barred from seeing her because of a restraining order entered against him. The father has not offered any explanation why these arguments regarding child support and abandonment could not have been fully made by his counsel without his testimony.
Thus, as in In re Murphy, [t]he record before us is devoid of anything which would indicate any risk of error to the respondent caused by the trial court's denial of his motion. 105 N.C. App. at 656, 414 S.E.2d at 399. Given the absence of any indication that the father's deposition testimony could have led to a different result in the TPR hearing, the second Eldridge factor outweighs the father's interest. This assignment of error is overruled.
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