In re Faircloth

• Citation: 571 S.E.2d 65,153 NC App. 565
• Decision Date: 05 November 2002
• Docket Number: No. COA01-1524.,COA01-1524.
• Court: North Carolina Court of Appeals
• Parties: In the matter of James David FAIRCLOTH, Jr., Dakota Lee Faircloth, Amanda Sue Lynn Faircloth, and Margaret Irene Faircloth, Juveniles.

571 S.E.2d 65

153 NC App. 565

In the matter of James David FAIRCLOTH, Jr., Dakota Lee Faircloth, Amanda Sue Lynn Faircloth, and Margaret Irene Faircloth, Juveniles.

No. COA01-1524.

Court of Appeals of North Carolina.

November 5, 2002.

David L. Kennedy, Fayetteville, for petitioner-appellee Cumberland County Department of Social Services.

Susan J. Hall, Fayetteville, for respondent-appellant.

THOMAS, Judge.

James Faircloth, Sr., respondent, appeals from an order terminating his parental rights to four children.

He contends the trial court committed reversible error (1) by denying his motion to recuse the trial judge from the termination of parental rights hearing; (2) by denying his attorney's motion to withdraw, and his oral motion to remove his attorney, based on ineffective assistance of counsel; (3) by ejecting him from the proceedings without affording him a means to participate other than through his attorney; (4) by finding that his Alford plea was an admission of his abuse of the children; and (5) by finding he had left the children in foster care for more than twelve months without showing reasonable progress in correcting the conditions which led to the removal of the children. For the reasons discussed herein, we affirm the trial court.

Faircloth is the father of James, born 4 June 1987; Dakota, born 22 September 1990; Amanda, born 7 August 1992; and Margaret, born 26 January 1995.

Prior to the filing of the termination petition, Faircloth was charged with numerous criminal offenses involving Amanda. On 11 October 1999, he entered an Alford plea to first degree rape, two counts of first degree sexual offense, felonious child abuse, crime against nature, felonious incest, and indecent liberties. He was sentenced to a term of 384 to 470 months in prison.

A petition to terminate Faircloth's parental rights and the parental rights of the children's mother, Tesha Faircloth Lewis, was filed on 3 August 2000 by the Cumberland County Department of Social Services (DSS). It alleges, inter alia, that: (1) Faircloth physically abused the children by hitting them with his hands and other objects; (2) he rubbed underwear soaked in urine and feces in Amanda's face in the presence of the other children; (3) he sexually abused Amanda and Margaret; (4) he emotionally abused the children; (5) the children were exposed to sexual activity, domestic violence, and their parents' excessive drinking and drug use; (6) Faircloth willfully left the children in foster care for more than twelve months without showing to the satisfaction of the court that reasonable progress under the circumstances has been made to correct the conditions which led to the children's removal; and (7) for six months immediately preceding the filing of the petition, Faircloth did not pay a reasonable portion of the cost of care for the children although physically and financially able to do so. The hearing at issue did not include adjudication of the mother's parental rights. The record is silent as to when or whether the section of the petition against the mother was heard.

The hearing on the section involving Faircloth's parental rights occurred 26 July 2001. The trial court found by clear and convincing evidence that (a) on 11 October 1999, Faircloth entered an Alford plea to the sexual offenses committed against Amanda and was sentenced to 384 to 470 months in prison; (b) Faircloth's incarceration beginning 8 January 1998 was due to willful actions on his part; (c) the children have been in DSS care continuously since 3 July 1997; and (d) Faircloth has received no treatment for his abuse of Amanda and there is a substantial likelihood that the abuse will continue.

The trial court then reached the following conclusions of law: (1) Faircloth abused Amanda within the meaning of N.C. Gen.Stat. § 7B-101(1); (2) he neglected the children within the meaning of N.C. Gen.Stat. § 7B-101(15) by not providing proper care, supervision or discipline; (3) he willfully left the children in foster care for more than twelve months without showing to the satisfaction of the Court that reasonable progress under the circumstances had been made to correct the conditions which led to the removal of the children; (4) the children have been in DSS custody since 3 July 1997, and for six months immediately preceding the filing of the petition, Faircloth failed to pay a reasonable portion of the cost of care for the children although physically and financially able to do so; (5) Faircloth is incapable of providing proper care and supervision for the children, such that the children are dependent children within the meaning of N.C. Gen.Stat. § 7B-101(9), and there is a reasonable probability that such incapability will continue for the foreseeable future; (6) he willfully abandoned the children for at least six consecutive months immediately preceding the filing of the petition; (7) he committed a felony assault resulting in serious bodily injury against Amanda in violation of N.C. Gen.Stat. § 7B-1111(8); (8) Faircloth's rights to Amanda have been involuntarily terminated and he lacks the ability or willingness to establish a safe home in violation of N.C. Gen.Stat. § 7B-1111(9). In its eighth and final conclusion of law, the trial court used the termination of Faircloth's parental rights to Amanda in the instant case to support a separate ground for terminating his parental rights to the other three children.

The trial court's conclusions of law are in part findings of fact based on clear and convincing evidence that statutory grounds for termination exist. That these findings are mislabeled conclusions of law is not fatal to the trial court's adjudicatory order. Cf. Highway Church of Christ v. Barber, 72 N.C.App. 481, 483-84, 325 S.E.2d 305, 307 (1985)

(as long as findings of fact and conclusions of law are clearly stated and easily distinguishable, the mere fact they are not separately and properly labeled, does not violate N.C. R. Civ. P. 52(a)(1)).

At disposition, the trial court found no evidence that it would be in the best interests of the children not to terminate Faircloth's parental rights and thus ordered Faircloth's parental rights to the four children terminated. Faircloth appeals.

By his first assignment of error, Faircloth contends Judge John W. Dickson erred in refusing to recuse himself from the termination hearing. He argues that Judge Dickson had a personal bias or prejudice and/or personal knowledge of disputed evidentiary facts and therefore should not have been the hearing judge. We disagree.

Judge Dickson presided over an earlier hearing on allegations that the four children were abused and neglected. Judge Dickson adjudicated the four children abused and neglected; however, on appeal, this Court reversed the order. In re Faircloth, 137 N.C.App. 311, 527 S.E.2d 679 (2000). The ground for reversal was that the trial court applied an erroneous legal standard in denying Faircloth's request to call three of the children as witnesses. Id. at 318, 527 S.E.2d at 684. The matter was remanded for a new hearing but it did not occur.

Faircloth contends Judge Dickson was biased and could not be impartial because he heard evidence against Faircloth in the previous abuse and neglect proceeding without hearing from the three children Faircloth sought to call as witnesses. Faircloth further contends Judge Dickson's bias is evidenced by his failure to hold a new hearing in the abuse and neglect proceeding before hearing the petition to terminate.

The Code of Judicial Conduct provides in pertinent part:

C. Disqualification

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings;

. . . .

Code of Judicial Conduct Canon 3(C)(1)(a), 2002 Ann. R. N.C. 306-07.

When a party requests such a recusal by the trial court, the party must "`demonstrate objectively that grounds for disqualification actually exist.'" In re LaRue, 113 N.C.App. 807, 809, 440 S.E.2d 301, 303 (1994) (quoting State v. Kennedy, 110 N.C.App. 302, 305, 429 S.E.2d 449, 451 (1993) (citations omitted)). The requesting party has the burden of showing through substantial evidence that the judge has such a personal bias, prejudice or interest that he would be unable to rule impartially. See State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774, 775 (1987)

; State v. Honaker, 111 N.C.App. 216, 219, 431 S.E.2d 869, 871 (1993). If there is sufficient force to the allegations contained in a recusal motion to proceed to find facts, or if a reasonable man knowing all of the circumstances would have doubts about the judge's ability to rule on the motion to recuse in an impartial manner, the trial judge should either recuse himself or refer the recusal motion to another judge. See State v. Poole, 305 N.C. 308, 320, 289 S.E.2d 335, 343 (1982); Bank v. Gillespie, 291 N.C. 303, 311, 230 S.E.2d 375, 380 (1976).

In the instant case, Faircloth's claim of bias and prejudice is based on Judge Dickson having presided over the earlier abuse and neglect hearing. However, this Court has held that knowledge of evidentiary facts gained by a trial judge from an earlier proceeding does not require disqualification. In re LaRue, 113 N.C.App. at 810, 440 S.E.2d at 303 (holding that a trial judge who had conducted an earlier review hearing, concluded that three children should remain with DSS, and recommended that DSS pursue termination of parental rights, was not subject to disqualification based on personal bias or prejudice in the subsequent termination proceeding). Furthermore, we reject any contention that Judge Dickson should be disqualified because he earlier adjudicated the four children abused and neglected. See id.

Finally, Faircloth has failed to show error arising from ...