An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-44


Filed: 2 January 2007

                            Wake County
J.L.D.,                         No. 05 J 140
    Minor Children.

    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 petitioner-appellee.

    Katharine Chester for respondent-appellant.

    Richard Croutharmel for guardian ad litem-appellee.

    GEER, Judge.

    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 charges.
    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 . . . ." Quevedo, 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. Compare id. 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. Chapman, 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 factor _ 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.; Murphy, 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 resolved.
    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. We disagree.
    Proceedings to terminate parental rights involve two distinct stages: an adjudicatory stage and a dispositional stage. In re Blackburn, 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 Williamson, 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. On 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 Ballard, 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 proceeding." Id. 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 Wheeler, 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 [J.L.D.]."
    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 placement.
    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. review denied, 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).

Footnote: 1
    With respect to respondent's assertion that his trial attorney's failure to object to the teleconference format constituted ineffective assistance of counsel, we disregard this argument because respondent failed to list it among his assignments of error. N.C.R. App. P. 10(a) (stating that the "scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal").
Footnote: 2
    The 2003 version of the statute is applicable here since the petition at issue was filed prior to 1 October 2005, the effective date of the statutory amendments.
Footnote: 3
    We further note that respondent's counsel has included in the appendix to the brief other material that is outside of the record. This is improper. See N.C.R. App. P. 28(d) (specifying the material that may properly be included in an appendix to the brief). The appendix is not a mechanism by which a party may place information before this Court that was omitted at the trial level. We have not, therefore, considered the material in the appendix.

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