Appeal by respondent from order entered 14 July 2005 by Judge
Jane P. Gray in Wake County District Court. Heard in the Court of
Appeals 13 September 2006.
Wake County Attorney's Office, by Corinne G. Russell, for
Katharine Chester for respondent-appellant.
Richard Croutharmel for guardian ad litem-appellee.
Respondent father appeals from a 14 July 2005 order
terminating his parental rights as to the minor child, J.L.D. On
appeal, respondent, who is incarcerated in federal prison in South
Carolina, argues that his due process rights were violated when he
could participate in the termination of parental rights hearing
("TPR hearing") only by teleconference. Based upon the authority
of In re Quevedo, 106 N.C. App. 574, 579, 419 S.E.2d 158, 160,
appeal dismissed, 332 N.C. 483, 424 S.E.2d 397 (1992), and In re
Murphy, 105 N.C. App. 651, 654, 414 S.E.2d 396, 398 (1992), we
disagree. Further, we hold, contrary to respondent father's
arguments, that the trial court's findings of fact supported itsconclusion that the father had neglected his child and that the
trial court's decision to terminate respondent father's parental
rights was not an abuse of discretion.
J.L.D. was born in 1996, and her birth certificate reflects
that the father was unidentified at the time. When J.L.D. was
about one year old, respondent _ who is the father of ten other
children in addition to J.L.D. _ removed J.L.D. from the mother's
home, where conditions were unfit for raising children. J.L.D.
subsequently lived with respondent for a one-and-a-half year period
between her first and third birthdays. J.L.D. then went to live
with respondent's stepmother for a three-year span, until about age
six when respondent decided to return J.L.D. to her mother.
J.L.D's mother failed to maintain stable housing or employment
and suffered from an apparent substance abuse problem. In March
2004, Wake County Human Services ("WCHS") was granted custody of
J.L.D. and her half-siblings. When WCHS first obtained custody
over J.L.D. in March 2004, respondent's whereabouts were unknown.
It was subsequently learned that he was incarcerated as a result of
a conviction on federal drug trafficking and firearm possession
In May 2004, the district court adjudicated J.L.D. and her
half-siblings neglected juveniles, as defined by N.C. Gen. Stat. §
7B-101(15) (2003), and ordered that they remain in the legal
custody of WCHS. Respondent was able to participate in the
adjudication hearing. He did not appeal that order. On February 16, 2005, the mother relinquished her parental
rights to J.L.D. and her half-siblings. WCHS filed a petition for
termination of respondent's parental rights on 2 March 2005. The
termination hearing was held on 15 June 2005, with respondent
participating via speaker phone from a federal prison in South
Carolina. The order terminating his parental rights was entered on
14 July 2005. Respondent timely appealed to this Court.
Respondent initially argues that his participation by
teleconference, as opposed to being personally present, violated
his right to due process. Contrary to respondent's suggestion, "an
incarcerated parent does not have an absolute right under the due
process clause to be transported to a termination hearing . . . ."
, 106 N.C. App. at 579, 419 S.E.2d at 160.
The manner in which an incarcerated parent may participate in
a hearing is a determination "for the trial court to make, subject
to review by the appellate courts, after balancing the three
factors specified in Mathews v. Eldridge
, 424 U.S. 319, 47 L. Ed.
2d 18 (1976)." Quevedo
, 106 N.C. App. at 579-80, 419 S.E.2d at 160
(identifying the three factors in Eldridge
as: "(1) the private
interests affected by the proceeding, (2) the risk of error created
by the State's chosen procedure, and (3) the countervailing
governmental interest supporting use of the challenged procedure").
Even though the record in this case does not reveal whether the
trial court balanced the Eldridge
factors, this Court need not
remand to the trial court but may decide in the first instance"whether respondent had a due process right to be at the
termination hearing." Id.
at 580, 419 S.E.2d at 160.
We first note that the record is devoid of any evidence that
respondent requested transportation to the hearing or otherwise
requested a different hearing format than the one provided.
at 579, 419 S.E.2d at 160 (respondent "filed a motion
requesting that the court either provide for his transportation
from the Massachusetts prison in which he was incarcerated or
postpone the hearing until he could attend"), and Murphy
, 105 N.C.
App. at 652, 414 S.E.2d at 397 (respondent filed "motion that he be
transported from the State correctional facility where he was
incarcerated to the termination hearing"). Under N.C.R. App. P.
10(b)(1), "[i]n order to preserve a question for appellate review,
a party must have presented to the trial court a timely request,
objection or motion, stating the specific grounds for the ruling
the party desired the court to make if the specific grounds were
not apparent from the context." Further, "[b]ecause defendant did
not raise [his] constitutional issues at trial, he has failed to
preserve them for appellate review and they are waived." State v.
, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005).
(See footnote 1)
Nevertheless, even if the due process issue had been properly
preserved for appellate review, we would still find no error. Generally, the first and third Eldridge
factors tend to balance out
each other. Quevedo
, 106 N.C. App. at 581, 419 S.E.2d at 161. As
a result, this Court has focused on the second Eldridge
the risk of error created by the State's chosen procedure _ as the
primary concern when considering a parent's inability to attend a
TPR hearing. Id.
, 105 N.C. App. at 655, 414 S.E.2d at 399.
Based upon our review of the record, we can find no indication that
respondent's participation by speaker phone jeopardized the
integrity or accuracy of the proceedings.
Although respondent was not physically present at the hearing,
his attorney was in the courtroom, and respondent and his attorney
were able to confer privately over the phone. Respondent claims
nonetheless that the teleconference format denied him "fundamental
fairness" because he was unable to hear and understand what was
going on in the courtroom and, similarly, those in the courtroom
had difficulty communicating with him. In support of this
contention, respondent selectively quotes portions of the hearing
transcript. When, however, the remainder of the transcript is
reviewed, it is apparent that the quoted portions represent brief,
isolated moments when either respondent or counsel was unable to
hear. Any confusion arising during these moments was quickly
On a whole, our review of the transcript persuades us that,
while perhaps not the perfect method of communication, use of the
speaker phone proved to be a reasonably effective way for
respondent to present testimony on his behalf and participate inthe hearing. Thus, we conclude that respondent's participation via
speaker phone posed minimal risk of error. Accordingly, even if
respondent had preserved this issue for review, we would hold that
his due process rights were not violated. See Quevedo
, 106 N.C.
App. at 582, 419 S.E.2d at 162 (holding that a "parent's
deposition, combined with representation by counsel at the hearing,
will ordinarily provide sufficient participation by the
incarcerated parent so as to reduce the risk of error attributable
to his absence to a level consistent with due process").
Respondent next argues that, as to the existence of
termination grounds based on neglect, the court's factual findings
are unsupported by clear, cogent, and convincing evidence, and the
court's legal conclusion is unsupported by the findings of fact.
Proceedings to terminate parental rights involve two distinct
stages: an adjudicatory stage and a dispositional stage. In re
, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). At
the adjudicatory stage, "[t]he burden . . . shall be upon the
petitioner or movant and all findings of fact shall be based on
clear, cogent, and convincing evidence." N.C. Gen. Stat. § 7B-
1109(f) (2005). In reviewing a trial court's finding that grounds
for termination exist, this Court must determine on appeal whether
"the court's findings of fact are based upon clear, cogent and
convincing evidence and [whether] the findings support the
conclusions of law." In re Allred
, 122 N.C. App. 561, 565, 471S.E.2d 84, 86 (1996). "When the court's findings . . . are
supported by ample, competent evidence, they are binding on appeal,
even though there may be evidence to the contrary." In re
, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988).
The trial court moves to the dispositional stage when it
concludes that the petitioner has proven the existence of at least
one ground for termination. N.C. Gen. Stat. § 7B-1110(a) (2005).
At disposition, the court decides whether termination is in the
child's best interests. Blackburn
, 142 N.C. App. at 610, 543
S.E.2d at 908. The court is required to "issue an order
terminating the parental rights unless it further determines that
the best interests of the child require otherwise." Id
appeal, "[t]he trial court's decision to terminate parental rights
is reviewed on an abuse of discretion standard." In re Nesbitt
147 N.C. App. 349, 352, 555 S.E.2d 659, 662 (2001).
Under N.C. Gen. Stat. § 7B-1111(a)(1) (2005), a trial court
may terminate parental rights if the parent has "neglected the
juvenile." A neglected juvenile is defined by statute as one "who
does not receive proper care, supervision, or discipline from the
juvenile's parent . . . or who has been abandoned . . . or who
lives in an environment injurious to the juvenile's welfare . . .
." N.C. Gen. Stat. § 7B-101(15) (2005).
A "prior adjudication of neglect may be admitted and
considered by the trial court in ruling upon a later petition to
terminate parental rights on the ground of neglect." In re
, 311 N.C. 708, 713-14, 319 S.E.2d 227, 231 (1984). Thetrial court must, however, still focus on "the fitness of the
parent to care for the child at the time of the termination
at 714-15, 319 S.E.2d at 232 (emphasis omitted).
When, as here, a child has not been in the parent's custody "for a
significant period of time prior to the termination hearing . . .
the trial court must also consider evidence of changed conditions
in light of the history of neglect by the parent and the
probability of a repetition of neglect
." In re Shermer
, 156 N.C.
App. 281, 286, 576 S.E.2d 403, 407 (2003) (emphasis added).
In this case, prior to the filing of the petition to terminate
parental rights, J.L.D. was removed from her parents' custody and
was adjudicated neglected. Under Ballard
, the trial court could
properly consider that initial adjudication, and the question for
the trial court was, therefore, whether there was a probability of
a repetition of neglect.
In the order terminating respondent's parental rights, the
court reiterated certain factual findings made in the 18 May 2004
order adjudicating J.L.D. a neglected juvenile _ an order from
which respondent took no appeal. Although respondent has
challenged some of those findings of fact in this appeal, they are
considered conclusive for purposes of our review. See In re
, 87 N.C. App. 189, 194, 360 S.E.2d 458, 461 (1987) (facts
found in prior adjudication of abuse and neglect were "binding in
the later [termination of parental rights] proceeding"). Those
findings of fact establish that respondent (1) has a criminal
record that includes "arrests for failure to pay child support,possession of firearms and possession of cocaine"; (2) had failed
to pay child support for J.L.D.; and (3) had "abandoned [J.L.D.] as
[he did] not have contact with or provide child support for
The trial court also made additional findings of fact to which
respondent has not assigned error or, if assigned as error, that
were not argued in his brief. Those findings of fact are also
binding on appeal. Koufman v. Koufman
, 330 N.C. 93, 97, 408 S.E.2d
729, 731 (1991); N.C.R. App. P. 28(b)(6) (assignments of error for
which no argument is presented are deemed abandoned).
These unchallenged findings of fact establish that: (1)
respondent is the father of eleven children and, because of his
incarceration, none of them are in his custody; (2) as to five of
these children, respondent is under court order to pay child
support, and as to the remaining six, respondent "provided what he
could, when he could"; (3) J.L.D. lived with respondent for only a
one-and-a-half year period before respondent arranged for J.L.D. to
reside with his stepmother; (4) J.L.D. was not enrolled in school
when she turned five years old because the stepmother did not have
the necessary paperwork; (5) respondent returned J.L.D. to her
mother following her period of residence in respondent's
stepmother's house; (6) respondent is uncertain when he last saw
J.L.D.; (7) from March 2004, when WCHS obtained custody of J.L.D.,
through June 2005, when the termination of parental rights hearing
was held, respondent claimed only to have sent one letter and some
pictures to J.L.D.; (8) respondent has chosen not to enroll inparenting, drug treatment, and vocational classes while in prison,
although they are available to him; and (9) respondent did not
suggest a possible relative placement option for J.L.D. until just
five weeks prior to the termination of parental rights hearing even
though he knew that his stepmother would not be considered for
Respondent, nonetheless, challenges an array of the trial
court's other findings, claiming there is a lack of sufficient
evidence to support them. He argues, for example, that the court
erred in finding that he failed to "develop a case plan" with WCHS
for J.L.D. According to respondent, this finding is not only
unfounded, but indicates that the trial court impermissibly shifted
the burden of developing a case plan from WCHS to him.
Rather than improper burden-shifting, however, the trial court
was properly finding, based on the record, a lack of interest by
respondent in his child. Following the neglect adjudication,
respondent was, at least three times, ordered "[t]hat should the
father desire reunification
, that [he] contact Wake County Human
Services to discuss a reunification plan." (Emphasis added.) At
the termination of parental rights hearing, the social worker in
charge of J.L.D.'s case testified that respondent never contacted
WCHS to discuss reunification. Although respondent attempted to
rebut this evidence by testifying that WCHS would hang up on him
when he called, the court was entitled to rely upon the testimony
of the social worker to the contrary. See Williamson
, 91 N.C. App.
at 674, 373 S.E.2d at 320 (findings "supported by ample, competentevidence . . . are binding on appeal, even though there may be
evidence to the contrary").
In light of the unchallenged findings described above and the
findings made in the initial adjudication, as well as the finding
that respondent failed to contact WCHS regarding reunification and
development of a case plan, we hold that there is ample support for
the court's conclusion that respondent neglected J.L.D. and that a
repetition of neglect would be probable if J.L.D. returned to his
custody. See, e.g., In re Yocum,
158 N.C. App. 198, 204, 580
S.E.2d 399, 403 (determination of neglect was proper where
incarcerated parent never gave any monetary support to child, had
no more than five visits with child, and failed to acknowledge
child's birthday), aff'd per curiam
, 357 N.C. 568, 597 S.E.2d 674
(2003); In re Davis
, 116 N.C. App. 409, 414, 448 S.E.2d 303, 306
(parents' failure to "obtain continued counseling, a stable home,
stable employment, and [attend] parenting classes" was sufficient
to show a probability that neglect would be repeated if child were
returned to parents' care), disc. review denied
, 338 N.C. 516, 452
S.E.2d 808 (1994); In re Graham
, 63 N.C. App. 146, 151, 303 S.E.2d
624, 627 ("One communication in a two year period does not evidence
the personal contact, love, and affection that inheres in the
parental relationship." (internal quotation marks omitted)), disc.
, 309 N.C. 320, 307 S.E.2d 170 (1983). "Having
concluded that at least one ground for termination of parental
rights existed, we need not address the additional ground[s] . . .found by the trial court." In re B.S.D.S.
, 163 N.C. App. 540, 546,
594 S.E.2d 89, 93-94 (2004).
We turn, therefore, to respondent's contention that the trial
court abused its discretion at the dispositional stage when it
determined that termination of his parental rights would be in
J.L.D.'s best interests. Upon finding the existence of at least
one statutory ground for termination, the court "shall issue an
order terminating the parental rights . . . unless the court shall
further determine that the best interests of the juvenile require"
otherwise. N.C. Gen. Stat. § 7B-1110(a) (2003).
(See footnote 2)
Respondent, citing to the book of an "award-winning
journalist," argues in his brief that children, like J.L.D., "do
better when they remain connected to their incarcerated parent."
We note that the views of this author appear nowhere in the record,
and we accordingly reject respondent's invitation to consider this
extra-record opinion testimony on appeal. This Court cannot
determine that a trial court abused its discretion based on
information that was never provided to the trial court.
(See footnote 3)
Focusing on the evidence in the record, we find sufficient
basis to conclude that J.L.D.'s best interests warranted thetermination of respondent's parental rights. The trial court's
findings of fact, supported by ample evidence, show, among other
things, respondent's inability to provide a stable, secure
environment for J.L.D. within a reasonable period of time, his at
best meager efforts to communicate with or provide support for
J.L.D., and his failure to engage in any specific conduct _ apart
from participation in the hearings _ that demonstrates a concrete
desire to reunify with J.L.D.
We also cannot disregard the fact that respondent has 11
children, including J.L.D., none of whom he is fully supporting or
caring for. The guardian ad litem for J.L.D. has stated that
respondent "wants to be able to create children and maintain his
rights to those children but he does not want the responsibility of
raising and caring for those children." Under these circumstances,
we are unable to conclude that the trial court abused its
discretion in terminating respondent's parental rights.
Accordingly, we affirm the decision below.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).