{ "id": 8524791, "name": "IN RE BRANDON LEE LaRUE, DANIEL LEE LaRUE, IVA GEAN LaRUE", "name_abbreviation": "In re Larue", "decision_date": "1994-03-01", "docket_number": "No. 9323DC180", "first_page": "807", "last_page": "812", "citations": [ { "type": "official", "cite": "113 N.C. App. 807" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "420 F. Supp. 451", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3887631 ], "year": 1976, "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/f-supp/420/0451-01" ] }, { "cite": "405 A.2d 851", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1979, "pin_cites": [ { "page": "855" } ], "opinion_index": 0 }, { "cite": "424 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "333 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546761, 2546403, 2550351, 2547351 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/333/0167-03", "/nc/333/0167-02", "/nc/333/0167-04", "/nc/333/0167-01" ] }, { "cite": "421 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "385" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527844 ], "year": 1992, "pin_cites": [ { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0606-01" ] }, { "cite": "144 S.E.2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "824" }, { "page": "824" } ], "opinion_index": 0 }, { "cite": "265 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576632 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "657" }, { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0653-01" ] }, { "cite": "425 S.E.2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "333 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547559 ], "year": 1993, "pin_cites": [ { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0258-01" ] }, { "cite": "429 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "451" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 302", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525467 ], "year": 1993, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0302-01" ] } ], "analysis": { "cardinality": 592, "char_count": 12136, "ocr_confidence": 0.767, "pagerank": { "raw": 1.6214836488637043e-07, "percentile": 0.6873205735160621 }, "sha256": "481fab84e06d376f393c2d3e7a4633f4aaf296e8e5c948787248ea688cb29537", "simhash": "1:ab0f4ead8a6bfc36", "word_count": 1921 }, "last_updated": "2023-07-14T17:21:41.323369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and WYNN concur." ], "parties": [ "IN RE BRANDON LEE LaRUE, DANIEL LEE LaRUE, IVA GEAN LaRUE" ], "opinions": [ { "text": "GREENE, Judge.\nErnest, born 16 July 1949, and Dorothy LaRue, born 4 March 1954, (the LaRues), the parents of three children, appeal from an order terminating their parental rights under N.C. Gen. Stat. \u00a7 7A-289.32(7) (Supp. 1993) based on their \u201cincapab[ability] as a result of their mental retardation of providing for the proper care and supervision of their children.\u201d\nAlleghany County Department of Social Services (DSS) became involved with the LaRues in March 1982 and first filed a petition alleging neglect on 29 July 1991. Pursuant to that petition, a hearing was conducted by District Court Judge Michael E. Helms, and the children were adjudicated, on 3 September 1991, neglected within the meaning of N.C. Gen. Stat. \u00a7 7A-517(21). Judge Helms placed custody of the children with DSS. The matter came on for review before District Court Judge Edgar B. Gregory on 4 February 1992. Pursuant to that hearing, Judge Gregory entered an order concluding that \u201cit would be in the best interest of all three juveniles to continue their legal and physical custody\u201d with DSS. Judge Gregory also \u201crecommended that the DSS pursue Termination of Parental Rights under G.S. 7A-289.32(2) [neglect] to the end that the three juveniles can be adopted.\u201d DSS subsequently filed a petition to terminate the LaRues\u2019 parental rights based on neglect. At the hearing on this petition, the LaRues moved for Judge Gregory to recuse himself based on his earlier recommendation that DSS pursue termination of parental rights. On 18 May 1992, Judge Gregory entered an order denying the motion to recuse. DSS subsequently filed an additional petition to terminate the LaRues\u2019 parental rights alleging as the basis for the petition that the LaRues were mentally retarded and unable to care for the children. N.C.G.S. \u00a7 7A-289.32(7).\nThe petition to terminate based on Section 7A-289.32(7) was heard in the trial court on 6 October 1992. The evidence before the court reveals that David L. Tate (Tate), a clinical psychologist, evaluated the intellectual abilities of the LaRues in November 1990. Dorothy LaRue had a full scale IQ of 71 and Ernest LaRue had a full scale IQ of 72. Tate characterized them as being in the \u201cborderline range of mental retardation.\u201d Dr. Phillip Batten (Dr. Batten), an expert in psychology, confirmed Tate\u2019s earlier IQ findings and based on his interaction with the LaRues, classified them as falling \u201cinto the category of borderline functioning.\u201d He testified that the LaRues suffered from no organic brain syndrome or other degenerative mental condition, and there was no evidence they suffered from any mental illness.\nThe issues presented are whether the trial judge erred in (I) denying the LaRues\u2019 motion for him to recuse himself from the hearing to terminate their parental rights; and (II) finding and concluding that the LaRues are mentally retarded within the meaning of N.C. Gen. Stat. \u00a7 7A-289.32(7).\nI\nThe LaRues first argue that Judge Gregory erred in failing to recuse himself in the action to terminate their parental rights because the record reveals that he had \u201ca personal bias or prejudice\u201d concerning them. We disagree.\nThe Code of Judicial Conduct does state that a judge \u201cshould disqualify himself ... where ... [h]e has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings.\u201d Code of Judicial Conduct Canon 3(C)(1) (1993). \u201cThe burden is on the party moving for recusal to \u2018demonstrate objectively that grounds for disqualification actually exist.\u2019 \u201d State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993). The LaRues have not met their burden in this case. The only evidence presented is that Judge Gregory, some eight months earlier, had conducted a review hearing pursuant to N.C. Gen. Stat. \u00a7 7A-657 and had concluded that the three children should remain with DSS. This is not sufficient to support a finding of bias or prejudice. Furthermore, the knowledge of \u201cevidentiary facts\u201d gained by the trial judge from the earlier proceedings does not require disqualification. We also reject the LaRues\u2019 argument that Judge Gregory should be disqualified because he \u201crecommended\u201d that DSS pursue a termination of parental rights proceeding against them. Indeed, the trial court is required at a review hearing to evaluate \u201c[wjhen and if termination of parental rights should be considered.\u201d N.C. Gen. Stat. \u00a7 7A-657(c)(6) (1989). Therefore, Judge Gregory did not err in denying the LaRues\u2019 motion for recusal.\nII\nThe LaRues next argue that the evidence does not support that they are mentally retarded within the meaning of N.C. Gen. Stat. \u00a7 7A-289.32(7). We agree.\nA district court can terminate parental rights if the petitioner shows by clear, cogent, and convincing evidence:\n(7) That the parent is incapable as a result of mental retardation, mental illness, organic brain syndrome, or any other degenerative mental condition of providing for the proper care and supervision of the child, such that the child is a dependent child within the meaning of G.S. 7A-517\u00dc3), and that there is a reasonable probability that such incapability will continue throughout the minority of the child.\nN.C.G.S. \u00a7 7A-289.32(7) (Supp. 1993). In this case, the testimony is that the LaRues do not suffer from mental illness, organic brain syndrome, or any other degenerative mental condition. The only question is whether they are mentally retarded. N.C. Gen. Stat. \u00a7 7A-289.32(7) does not define the term \u201cmental retardation.\u201d Because, however, the language of the \u201cstatute is clear and is not ambiguous\u201d it must be \u201cimplemented according to the plain meaning of its terms.\u201d Hyler v. GTE Products Co., 333 N.C. 258, 262, 425 S.E.2d 698, 701 (1993). Dictionaries are properly used to ascertain the \u201cplain meaning\u201d or the \u201cnatural and ordinary meaning\u201d of words used in a statute. Hatteras Yacht Co. v. High, 265 N.C. 653, 657, 144 S.E.2d 821, 824 (1965); Edwards v. University of North Carolina, 107 N.C. App. 606, 609, 421 S.E.2d 383, 385, disc. rev. denied, 333 N.C. 167, 424 S.E.2d 909 (1992). Definitions of the word or term contained in other statutes, although not controlling, \u201cthrow some light upon . . . [its] normal usage.\u201d Hatteras, 265 N.C. at 657, 144 S.E.2d at 824.\nA medical dictionary defines mental retardation as follows:\nBelow normal intellectual function that has its cause or onset during the developmental period and usually in the first years after birth. There is impaired learning, social adjustment, and maturation. The causes may be but do not have to be genetic. . . . The degree of intellectual impairment is classed on the basis of the Wechsler IQ scale as follows: 1. Mild, IQ 69-55. These children are educable. 2. Moderate, IQ 54-40. These children are trainable. 3. Severe, IQ 39-25. 4. Profound, IQ below 25.\nTaber\u2019s Cyclopedic Medical Dictionary 1108 (16th ed. 1989) (Taber\u2019s). The North Carolina Mental Health, Developmental Disabilities, and Substance Abuse Act of 1985 defines mental retardation as \u201csignificantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before age 22.\u201d N.C.G.S. \u00a7 122C-3(22) (1993). The American Association on Mental Deficiency refers to mental retardation as \u201csub-average general intellectual functioning which originated during the developmental period and is associated with impairment in adaptive behavior.\u201d Matter of Grady, 405 A.2d 851, 855 (N.J. 1979); see also North Carolina Ass\u2019n for Retarded Children v. State of North Carolina, 420 F. Supp. 451, 453 (1976). The American Psychiatric Association\u2019s diagnostic criteria for mental retardation provides that mental retardation is (1) significantly subaverage general intellectual functioning, (2) significant impairments in adaptive functioning, and (3) onset before the age of 18. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 31-32 (3d ed. 1987) (DSM-III).\nHaving reviewed these various definitions, which are very similar, we believe the definition of mental retardation adopted by our legislature in N.C. Gen. Stat. \u00a7 122C-3(22) represents the plain meaning of the term \u201cmental retardation\u201d used in N.C. Gen. Stat. \u00a7 7A-289.32(7).. Applying this definition to the evidence in this case, there is not clear, cogent, and convincing evidence of mental retardation of either parent. \u201cSignificantly subaverage general intellectual functioning\u201d is generally manifested by an IQ score of less than 70. Nonetheless, IQ scores of 71 and 72, as received by the LaRues, can represent subaverage general intellectual functioning if the persons \u201cexhibit significant defects in adaptive behavior.\u201d DSM-III at 28 (\u201c[tjreating the IQ with some flexibility permits inclusion in the Mental Retardation category of people with IQs somewhat higher than 70\u201d). This record does not reflect that the LaRues exhibited significant defects in adaptive behavior: neither psychologist was willing to classify the LaRues as mentally retarded, instead using the label \u201cborderline,\u201d defined as \u201ca patient who has some of the requirements for a definite diagnosis but not enough for certainty.\u201d Taber\u2019s at 236. Thus, the psychologists necessarily were unable to conclude that the LaRues exhibited significant defects in adaptive behavior. The trial court therefore erred in terminating their parental rights under N.C. Gen. Stat. \u00a7 7A-289.32(7).\nBecause the record reveals that DSS\u2019s petition to terminate parental rights for neglect under Section 7A-289.32(2) filed 24 February 1992 was never addressed or dismissed, we remand for a hearing on that petition.\nAffirmed in part, reversed in part, and remanded.\nJudges COZORT and WYNN concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Jane Rankin Thompson, for petitioner-appellee Alleghany County Department of Social Services.", "Doughton & Marshall, by Wm. Bynum Marshall, for respondent-appellants.", "Edmund I. Adams, Guardian ad Litem, for Brandon Lee LaRue, Daniel Lee LaRue, and Iva Gean LaRue." ], "corrections": "", "head_matter": "IN RE BRANDON LEE LaRUE, DANIEL LEE LaRUE, IVA GEAN LaRUE\nNo. 9323DC180\n(Filed 1 March 1994)\n1. Judges, Justices, and Magistrates \u00a7 26 (NCI4th)\u2014 termination of parental rights \u2014previous recommendation by judge that termination be pursued \u2014 recusal denied\nThe trial judge in a termination of parental rights proceeding did not err by failing to recuse himself where he had conducted an earlier review hearing, concluded that the juveniles should remain in the custody of DSS, and recommended that DSS pursue termination of parental rights. Canon 3(C)(1) of the Code of Judicial Conduct states that a judge should disqualify himself where he has a personal bias or prejudice or personal knowledge of disputed evidentiary facts. Conducting a review hearing pursuant to N.C.Or.S. '\u00a7 7A-657 and concluding that the children should remain with DSS is not sufficient to support a finding of bias or prejudice; the knowledge of evidentiary facts gained by the trial judge from the earlier proceeding does not require disqualification; and the court is required at a review hearing to evaluate when and if termination of parental rights should be considered.\nAm Jur 2d, Judges \u00a7\u00a7 86 et seq.\n2. Parent and Child \u00a7 109 (NCI4th)\u2014 termination of parental rights \u2014mental retardation of parents \u2014 borderline IQ \u2014 evidence not sufficient\nThe evidence in a termination of parental rights hearing did not support the finding that the parents were mentally retarded within the meaning of N.C.G.S. \u00a7 7A-289.32(7). Although the parents had IQs of 71 and 72, the record does not reflect that they exhibited significant defects in adaptive behavior and neither psychologist was willing to classify the parents as retarded, instead using the label \u201cborderline.\u201d The action was remanded for a hearing on a petition to terminate for neglect, which had not been addressed.\nAm Jur 2d, Parent and Child \u00a7\u00a7 34, 35.\nAppeal by respondents from order entered 17 November 1992 in Alleghany County District Court by Judge Edgar B. Gregory. Heard in the Court of Appeals 4 January 1994.\nAttorney General Michael F. Easley, by Assistant Attorney General Jane Rankin Thompson, for petitioner-appellee Alleghany County Department of Social Services.\nDoughton & Marshall, by Wm. Bynum Marshall, for respondent-appellants.\nEdmund I. Adams, Guardian ad Litem, for Brandon Lee LaRue, Daniel Lee LaRue, and Iva Gean LaRue." }, "file_name": "0807-01", "first_page_order": 837, "last_page_order": 842 }