In the Matter of K.D.L.

627 S.E.2d 221, 176 N.C. App. 261
CourtCourt of Appeals of North Carolina
DecidedFebruary 21, 2006
DocketNo. COA05-773.
StatusPublished
Cited by9 cases

This text of 627 S.E.2d 221 (In the Matter of K.D.L.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Matter of K.D.L., 627 S.E.2d 221, 176 N.C. App. 261 (N.C. Ct. App. 2006).

Opinion

*222TYSON, Judge.

Shawn Lambert ("respondent") appeals from an order terminating his parental rights to his minor child K.D.L. We affirm.

I. Background

K.D.L.'s mother filed a petition to terminate respondent's parental rights on 11 February 2004. Respondent filed a pro se answer on 1 March 2004 and denied the allegations raised in the petition. Counsel was appointed for respondent on 3 March 2004.

Respondent, through counsel, filed a motion for funds to depose respondent due to his being incarcerated in Tennessee and for a continuance of the hearing to allow time for the deposition on 15 April 2004. The district court denied respondent's motions and terminated his parental rights on 19 April 2004. The court reduced its order to writing on 9 June 2004. Respondent appeals.

II. Issues

Respondent argues the trial court erred when it: (1) denied respondent's motion to be deposed because of his incarceration and inability to be present for the proceedings; and (2) failed to reduce its order to writing within the statutory thirty-day time frame.

III. Standard of Review

On appeal, our standard of review for the termination of parental rights is whether the trial court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law.

In re Baker, 158 N.C.App. 491, 493, 581 S.E.2d 144, 146 (2003) (citations and internal quotations omitted).

"[T]he trial court's conclusions of law are reviewable de novo." In re Pope, 144 N.C.App. 32, 40, 547 S.E.2d 153, 158, aff'd, 354 N.C. 359, 554 S.E.2d 644 (2001).

IV. Respondent's Testimony

Respondent argues the trial court erred when it denied respondent's motion to be deposed because of his incarceration and inability to be present for the proceedings.

Respondent was incarcerated in Washington County, Tennessee at the time of the 19 April 2004 hearing. Respondent, through his attorney, requested a continuance of the case and funds to obtain respondent's deposition. The trial court denied respondent's request. Respondent contends the trial court failed to provide him with "fundamentally fair procedures." Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599, 606 (1982) (stating, "forced dissolution of [a parent's] parental rights have a more critical need for procedural protection than do those resisting state intervention into ongoing family affairs.").

In Santoksy v. Kramer, the United States Supreme Court ruled on the degree of process constitutionally due to a natural parent in a termination of parental rights ("TPR") hearing. Id. The Court stated:

the nature of the process due in parental rights termination proceedings turns on a balancing of the "three distinct factors" specified in Mathews v. Eldridge, 424 U.S. 319, 335 [96 S.Ct. 893, 903] 47 L.Ed.2d 18, 33 (1976): 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 process.

Id. at 754, 102 S.Ct. at 1395, 71 L.Ed.2d at 607.

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, 102 S.Ct. at 1394, 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, 102 S.Ct. at 1395, 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

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Cite This Page — Counsel Stack

Bluebook (online)
627 S.E.2d 221, 176 N.C. App. 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-kdl-ncctapp-2006.