{ "id": 9250860, "name": "IN THE MATTER OF: JAMES DAVID FAIRCLOTH, JR., DAKOTA LEE FAIRCLOTH, AMANDA SUE LYNN FAIRCLOTH, and MARGARET IRENE FAIRCLOTH, Juveniles", "name_abbreviation": "In re Faircloth", "decision_date": "2002-11-05", "docket_number": "No. COA01-1524", "first_page": "565", "last_page": "581", "citations": [ { "type": "official", "cite": "153 N.C. App. 565" } ], "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": "316 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "252" } ], "opinion_index": 0 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "year": 1984, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0101-01" ] }, { "cite": "564 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "602" }, { "page": "602" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079405 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "97" }, { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0094-01" ] }, { "cite": "552 S.E.2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "280" }, { "page": "280" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 438", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11359165 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "440" }, { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0438-01" ] }, { "cite": "543 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "908" }, { "page": "908" }, { "page": "908" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 607", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442570 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "610" }, { "page": "610" }, { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0607-01" ] }, { "cite": "455 U.S. 745", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11307633 ], "weight": 4, "year": 1982, "pin_cites": [ { "page": "754" }, { "page": "607" }, { "page": "758-59" }, { "page": "610", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/455/0745-01" ] }, { "cite": "424 U.S. 319", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12026449 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/424/0319-01" ] }, { "cite": "300 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "715" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 267", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520490 ], "year": 1983, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0267-01" ] }, { "cite": "422 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503783 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0663-01" ] }, { "cite": "414 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "400" }, { "page": "398" }, { "page": "397" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524830 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "658" }, { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0651-01" ] }, { "cite": "375 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "678" }, { "page": "679" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 662", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527488 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "665" }, { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0662-01" ] }, { "cite": "473 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "396", "parenthetical": "recognizing these rights under former N.C. Gen. Stat. \u00a7 7A-289(23)" }, { "page": "436" }, { "page": "396" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 434", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913599 ], "year": 1996, "pin_cites": [ { "page": "436", "parenthetical": "recognizing these rights under former N.C. Gen. Stat. \u00a7 7A-289(23)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0434-01" ] }, { "cite": "230 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "380" } ], "opinion_index": 0 }, { "cite": "291 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557966 ], "year": 1976, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0303-01" ] }, { "cite": "289 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "343" } ], "opinion_index": 0 }, { "cite": "305 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569745 ], "year": 1982, "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0308-01" ] }, { "cite": "431 S.E.2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 216", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521261 ], "year": 1993, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0216-01" ] }, { "cite": "359 S.E.2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "775" } ], "opinion_index": 0 }, { "cite": "320 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723431 ], "year": 1987, "pin_cites": [ { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0626-01" ] }, { "cite": "429 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "451", "parenthetical": "citations omitted" } ], "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", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0302-01" ] }, { "cite": "440 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "303", "parenthetical": "quoting State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993) (citations omitted)" }, { "page": "303" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 807", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524791 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "809", "parenthetical": "quoting State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993) (citations omitted)" }, { "page": "810" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0807-01" ] }, { "cite": "527 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "684" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11093154 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/137/0311-01" ] }, { "cite": "325 S.E.2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "307", "parenthetical": "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)" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 481", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526976 ], "year": 1985, "pin_cites": [ { "page": "483-84", "parenthetical": "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)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0481-01" ] }, { "cite": "439 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "opinion_index": 1 }, { "cite": "355 N.C. 564", "category": "reporters:state", "reporter": "N.C.", "year": 1993, "opinion_index": 1 }, { "cite": "433 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "477" } ], "opinion_index": 1 }, { "cite": "111 N.C. App. 907", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524729 ], "year": 1993, "pin_cites": [ { "page": "908" } ], "opinion_index": 1, "case_paths": [ "/nc-app/111/0907-01" ] }, { "cite": "230 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "528" } ], "opinion_index": 1 }, { "cite": "291 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558324 ], "year": 1976, "pin_cites": [ { "page": "371" } ], "opinion_index": 1, "case_paths": [ "/nc/291/0366-01" ] }, { "cite": "241 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "opinion_index": 1 }, { "cite": "394 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "year": 1978, "opinion_index": 1 }, { "cite": "239 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "577" } ], "opinion_index": 1 }, { "cite": "34 N.C. App. 503", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550169 ], "year": 1977, "pin_cites": [ { "page": "506" } ], "opinion_index": 1, "case_paths": [ "/nc-app/34/0503-01" ] }, { "cite": "230 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "380" } ], "opinion_index": 1 }, { "cite": "291 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557966 ], "year": 1976, "pin_cites": [ { "page": "311" } ], "opinion_index": 1, "case_paths": [ "/nc/291/0303-01" ] }, { "cite": "429 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "451", "parenthetical": "citations omitted" }, { "parenthetical": "citations omitted" }, { "page": "451" } ], "opinion_index": 1 }, { "cite": "110 N.C. App. 302", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525467 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "305", "parenthetical": "citations omitted" }, { "page": "305" } ], "opinion_index": 1, "case_paths": [ "/nc-app/110/0302-01" ] }, { "cite": "527 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "684" } ], "opinion_index": 1 }, { "cite": "137 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11093154 ], "year": 2000, "pin_cites": [ { "page": "318" } ], "opinion_index": 1, "case_paths": [ "/nc-app/137/0311-01" ] } ], "analysis": { "cardinality": 1185, "char_count": 37769, "ocr_confidence": 0.756, "pagerank": { "raw": 4.01642196629076e-07, "percentile": 0.9064574807257103 }, "sha256": "79e32dcd496bbd501e7a60130d42e39cae4368097168ced1747157b31ab9c999", "simhash": "1:0bebd02bf42f8d52", "word_count": 6191 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge MARTIN concurs.", "Judge TYSON concurs in the result only." ], "parties": [ "IN THE MATTER OF: JAMES DAVID FAIRCLOTH, JR., DAKOTA LEE FAIRCLOTH, AMANDA SUE LYNN FAIRCLOTH, and MARGARET IRENE FAIRCLOTH, Juveniles" ], "opinions": [ { "text": "THOMAS, Judge.\nJames Faircloth, Sr., respondent, appeals from an order terminating his parental rights to four children.\nHe 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\u2019s 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.\nFaircloth 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.\nPrior 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.\nA petition to terminate Faircloth\u2019s parental rights and the parental rights of the children\u2019s 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\u2019s 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\u2019 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\u2019s 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.\nThe hearing at issue did not include adjudication of the mother\u2019s parental rights. The record is silent as to when or whether the section of the petition against the mother was heard.\nThe hearing on the section involving Faircloth\u2019s 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\u2019s incarcer\u00e1tion 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.\nThe trial court then reached the following conclusions of law: (1) Faircloth abused Amanda within the meaning of N.C. Gen. Stat. \u00a7 7B-101(1); (2) he neglected the children within the meaning of N.C. Gen. Stat. \u00a7 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. \u00a7 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. \u00a7 7B-1111(8); (8) Faircloth\u2019s 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. \u00a7 7B-1111(9). In its eighth and final conclusion of law, the trial court used the termination of Faircloth\u2019s parental rights to Amanda in the instant case to support a separate ground for terminating his parental rights to the other three children.\nThe trial court\u2019s 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\u2019s 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)).\nAt disposition, the trial court found no evidence that it would be in the best interests of the children not to terminate Faircloth\u2019s parental rights and thus ordered Faircloth\u2019s parental rights to the four children terminated. Faircloth appeals.\nBy his first assignment of error, Faircloth contends Judge John W. Dickson erred in refusing to recuse himself from the t\u00e9rmination 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.\nJudge 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\u2019s 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.\nFaircloth 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\u2019s bias is evidenced by his failure to hold a new hearing in the abuse and neglect proceeding before hearing the petition to terminate.\nThe Code of Judicial Conduct provides in pertinent part:\nC. Disqualification\n(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:\n(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings;\nCode of Judicial Conduct Canon 3(C)(1)(a), 2002 Ann. R. N.C. 306-07.\nWhen a party requests such a recusal by the trial court, the party must \u201c \u2018demonstrate objectively that grounds for disqualification actually exist.\u2019 \u201d 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\u2019s 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).\nIn the instant case, Faircloth\u2019s 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 evi-dentiary 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.\nFinally, Faircloth has failed to show error arising from the trial court\u2019s failure to hold a rehearing in the abuse and neglect proceeding prior to the instant case. An adjudicatory hearing on abuse and neglect allegations is not a condition precedent to a termination hearing. In fact, N.C. Gen. Stat. \u00a7 7B-1111 provides grounds for terminating parental rights which are not conditioned on a determination that a child is abused or neglected. N.C. Gen. Stat. \u00a7\u00a7 7B-1111(3), (5), (6) (2001). We further note that N.C. Gen. Stat. \u00a7 7B-1102 allows parties to file motions to terminate parental rights in pending child abuse or neglect proceedings and gives the trial court authority to consolidate the actions pursuant to N.C. R. Civ. P. 42. N.C. Gen. Stat. \u00a7 7B-1102(a), (c) (2001). A review of N.C.G.S. \u00a7 1102, as well as the rest of Chapter 7B, Article 11, reveals no requirement as suggested by Faircloth. Here, such a hearing on abuse and neglect may well have been merely redundant with parts of the termination hearing. Further, considering the length of delay resulting from the earlier appeal, the status of the children and the need to determine permanency may well have changed.\nAs he fails to advance any further argument to substantiate his claim of personal bias or prejudice on the part of Judge Dickson, Faircloth\u2019s first assignment of error is rejected.\nIn his next assignment of error, Faircloth contends the trial court erred in not removing his attorney from the case. We disagree.\nN.C. Gen. Stat. \u00a7\u00a7 7B-1101 and 7B-1109(b) guarantee a parent\u2019s right to counsel, including appointed counsel in cases of indigency, in all proceedings related to the termination of parental rights. See In re Oghenekevebe, 123 N.C. App. 434, 436, 473 S.E.2d 393, 396 (1996) (recognizing these rights under former N.C. Gen. Stat. \u00a7 7A-289(23)). Implicit in this right to counsel is the right to effective assistance of counsel. Id. at 436, 473 S.E.2d at 396; In re Bishop, 92 N.C. App. 662, 665, 375 S.E.2d 676, 678 (1989). To prevail on a claim of ineffective assistance of counsel, Faircloth \u201cmust show that counsel\u2019s performance was deficient and the deficiency was so serious as to deprive [him] of a fair hearing.\u201d In re Bishop, 92 N.C. App. at 665, 375 S.E.2d at 679.\nCounsel was appointed for Faircloth and has represented him in the instant case, the earlier abuse and neglect proceeding, and the prior appeal. Faircloth claims evidence of counsel\u2019s deficient performance can be found in the failure to schedule a new hearing in the abuse and neglect proceeding, the failure to issue subpoenas and file pre-trial motions prior to the termination hearing as requested by Faircloth, and the failure to object to testimony offered by the prosecutor of Faircloth\u2019s criminal case. Faircloth, however, does not show prejudice arising from there being no rehearing in the abuse and neglect proceeding prior to the termination hearing. As noted earlier, such a hearing was not required. He also fails to indicate the nature of the pre-trial motions counsel should have filed or the identity of witnesses counsel should have subpoenaed. Thus, we cannot hold that counsel\u2019s failure to do so resulted in prejudice to Faircloth or denied him a fair hearing.\nThe record actually shows counsel objected at several points during the testimony of the State\u2019s prosecutor, including when hearsay evidence was being offered by the prosecutor regarding reports by two of the children that had not been offered at Faircloth\u2019s criminal trial. Counsel also cross-examined the State\u2019s prosecutor concerning the details of Faircloth\u2019s Alford plea. In sum, Faircloth fails to demonstrate that counsel\u2019s conduct at trial was so deficient as to deprive him of a fair hearing. The trial court did not err in failing to remove counsel from the case.\nBy his third assignment of error, Faircloth contends the trial court abused its discretion in removing him from the hearing while not providing a means for him to testify when called by counsel. We disagree.\nThe record shows Faircloth repeatedly disrupted the proceedings. Following the denial of his attorney\u2019s motion to withdraw and Faircloth\u2019s oral motion to remove counsel, Faircloth told the judge, \u201cYou can\u2019t force me to have that man for my damn attorney.\u201d He then argued with the trial court concerning the judge\u2019s decision not to recuse himself. During this exchange, Faircloth repeatedly cursed and acted in a belligerent fashion. At one point, he was told by the bailiff to turn around and keep his feet under the table, to which Faircloth responded, \u201cTake me out of this motherfucker.\u201d He refused to be affirmed prior to questioning by counsel for DSS. He was then asked whether he had pled guilty to the sexual offenses committed against Amanda and he denied it. His counsel then declined an opportunity to question him. He continuously interrupted the testimony of the State\u2019s prosecutor with the trial court telling him to direct any questions he had for witnesses to his attorney. Nevertheless, Faircloth continued interrupting and using profane language. The trial court finally warned Faircloth he would be removed from the courtroom if he used \u201cone more bit of profanity.\u201d Faircloth responded by yet again cursing the judge. The trial court then stated:\nAll right. The court having warned Mr. Faircloth that if there was any more profanity from him he would be removed from this courtroom; that within less than 60 seconds, more profanity issued from him. He is ordered removed from this courtroom. He may be returned to the Department of Corrections.\nFollowing the presentation of DSS\u2019 case, counsel for Faircloth attempted to call Faircloth as a witness. Faircloth was not present and no steps were taken to secure his testimony.\nA termination of parental rights hearing is a civil rather than criminal action, with the right to be present, to testify, and to confront witnesses subject to \u201cdue limitations.\u201d In re Murphy, 105 N.C. App. 651, 658, 414 S.E.2d 396, 400, aff'd, 332 N.C. 663, 422 S.E.2d 577 (1992); In re Barkley, 61 N.C. App. 267, 270, 300 S.E.2d 713, 715 (1983). In Murphy, this Court held that an incarcerated parent\u2019s presence at a termination of parental rights hearing was not required as a matter of law, but rather was a matter for determination by the trial court subject to appellate review. Murphy, 105 N.C. App. at 654, 414 S.E.2d at 398. The Court further held that the three-factor balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18 (1976), was the appropriate measure for determining if the process afforded in a parental termination proceeding meets the \u201crigors of the due process clause.\u201d Id. at 653, 414 S.E.2d at 397. The Mathews/Eldridge factors are: \u201c[1] the private interests affected by the proceeding; [2] the risk of error created by the State\u2019s chosen procedure; and [3] the countervailing governmental interest supporting use of the challenged procedure.\u201d Santosky v. Kramer, 455 U.S. 745, 754, 71 L. Ed. 2d 599, 607 (1982).\nAnalysis of the Mathews/Eldridge factors shows Faircloth\u2019s due process rights were not violated. The first factor, his private interest, weighs against the trial court\u2019s decision to remove him from the courtroom without providing a means through which he could testify. The importance of a natural parent\u2019s right to the care, custody and management of his or her children cannot be denied and \u201c[a] parent\u2019s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one[.]\u201d Id. at 758-59, 71 L. Ed. 2d at 610 (citations omitted). One faced with the possible dissolution of parental rights has a strong interest in being present at the hearing and having the opportunity to testify.\nHowever, the third factor, the countervailing governmental interest, weighs in support of the trial court\u2019s decision. The State has an interest in ensuring a fair hearing and a correct decision and protecting the dignity of the courtroom. Faircloth\u2019s conduct here severely disrupted the proceeding. He refused to respond to the clerk\u2019s attempts to take his oath of affirmation when called to testify by DSS. He was repeatedly warned by the trial court to direct questions to his attorney after he verbally harassed and attempted to question a witness. Finally, he was warned by the court he would be removed for continued use of profanity. Faircloth persisted and only then was taken from the courtroom. Clearly, there was an adequate basis for the trial court to determine that Faircloth\u2019s disruptive behavior prevented a proper adjudicatory hearing and demonstrated contempt for court.\nThe second Mathews/Eldridge factor, the risk of error created by the State\u2019s procedure, also weighs in favor of the State. On this record, the risk of error created by Faircloth\u2019s removal from the courtroom without being provided means through which to testify was slight. Although Faircloth was called to testify, and his counsel objected to Faircloth\u2019s inability to testify, Faircloth has made no argument that his testimony would have provided a defense to the termination, nor does he indicate how he was prejudiced by not being present and not being allowed to testify. Further, his actions during the hearing undermine any claim that he was prejudiced by removal. His disregard for the procedure of the court and failure to be affirmed when called to testify by DSS indicate he did not value his right to testify. His disruptive behavior following repeated warnings clearly demonstrates he did not value his right to be present for the remainder of the hearing.\nIn sum, the strength of the governmental interest in assuring a fair and just adjudication and protecting the dignity of the courtroom, and the low risk of error created by Faircloth\u2019s inability to testify, lead to the conclusion his due process rights were not violated. The trial court did not abuse its discretion in removing Faircloth from the courtroom without providing a means for him to personally participate in the remainder of the hearing.\nBy his remaining two assignments of error, Faircloth attacks some of the grounds on which the trial court based its order terminating his parental rights.\n\u201cThere is a two-step process in a termination of parental rights proceeding.\u201d In re Blackburn, 142 N.C. App. 607, 610, 543 S.E.2d 906, 908 (2001). The two stages are distinct. In re Lambert-Stowers, 146 N.C. App. 438, 440, 552 S.E.2d 278, 280 (2001). At the adjudicatory stage, the petitioner has the burden of establishing by clear and convincing evidence that at least one of the statutory grounds listed in N.C. Gen. Stat. \u00a7 7B-1111 exists. In re Anderson, 151 N.C. App. 94, 97, 564 S.E.2d 599, 602 (2002); In re Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908. We note that Chapter 7B, Article 11 interchangeably uses the \u201cclear, cogent and convincing\u201d and the \u201cclear and convincing\u201d standards. Compare N.C. Gen. Stat. \u00a7 7B-1109 (\u201cThe burden in such proceedings shall be upon the petitioner or movant and all findings of fact shall be based on clear, cogent, and convincing evidence.\u201d) with N.C. Gen. Stat. \u00a7 7B-1111 (\u201cThe burden in such proceedings shall be upon the petitioner or movant to prove the facts justifying such termination by clear and convincing evidence.\u201d). These two standards are synonymous. In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 252 (1984).\nIf a ground for termination is so established, the trial court must proceed to the second stage and hold a dispositional hearing. In re Lambert-Stowers, 146 N.C. App. at 440, 552 S.E.2d at 280. There, the trial court must consider whether termination is in the best interests of the child. In re Anderson, 151 N.C. App. at 98, 564 S.E.2d at 602. Unless the trial court determines that the best interests of the child require otherwise, the termination order shall be issued. N.C. Gen. Stat. \u00a7 7B-1110; In re Blackburn, 142 N.C. App. at 610, 543 S.E.2d at 908.\nHere, the trial court determined the following statutory grounds for termination existed: (1) Faircloth abused Amanda within the meaning of N.C.G.S. \u00a7 7B-101(1); (2) he neglected the children within the meaning of N.C.G.S. \u00a7 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 children\u2019s removal; (4) the children have been placed in DSS custody 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 they are dependent children within the meaning of N.C.G.S. \u00a7 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.G.S. \u00a7 7B-1111(8); and (8) his parental rights to Amanda have been involuntarily terminated and he lacks the ability or willingness to establish a safe home in violation of N.C.G.S. \u00a7 7B-1111(9).\nIn his brief, Faircloth only presents argument against the following statutory grounds for termination: (1) that he abused Amanda; (2) that he willfully left the children in foster care for twelve months without showing reasonable progress in correcting the conditions which led to removal; and (3) that he is incapable of providing proper care and supervision such that the juveniles are dependent children under N.C.G.S. \u00a7 7A-10I(9), and there is a reasonable probability that such incapability will continue for the foreseeable future.\nHe presents no argument against the following grounds for termination: (1) that he neglected the children; (2) that for a period of six months immediately preceding the filing of the petition he failed a pay a reasonable portion of the children\u2019s cost of care although able to do so; arid (3) that he willfully abandoned the children for at least six consecutive months immediately preceding the filing of the petition.\nThe trial court need only find one of the statutory grounds for termination. N.C.G.S. \u00a7 7B-1111(a). Furthermore, this Court\u2019s appellate review is limited to those assignments of error set out in the record on appeal and properly presented and discussed in the party\u2019s brief. N.C. R. App. P. 10(a) (2002); N.C. R. App. P. 28(a) (2002). Questions not so raised and presented are deemed abandoned. Since Faircloth has failed to present argument against several of the statutory grounds for termination found by the trial court, we do not review those grounds. In addition, by failing to deny in his answer certain allegations contained in the petition, Faircloth, in fact, admitted he willfully left the children in foster care for more than twelve months without showing reasonable progress and failed to pay a reasonable portion of the children\u2019s cost of care for a period of six months immediately preceding the filing of the petition although able to do so. See N.C. Gen. Stat. \u00a7\u00a7 7B-1107, 7B-1108(a) (2001). Accordingly, even assuming Faircloth\u2019s two remaining assignments of error have merit, any such errors are not prejudicial in this case since other substantial grounds for termination were established.\nWe hold that the trial court did not err in failing to recuse itself, did hot err in failing to remove Faircloth\u2019s counsel from the case, did not abuse its discretion in removing Faircloth from the proceedings and did find sufficient grounds for termination. We affirm the trial court\u2019s order terminating Faircloth\u2019s parental rights to the four children.\nAffirmed.\nJudge MARTIN concurs.\nJudge TYSON concurs in the result only.", "type": "majority", "author": "THOMAS, Judge." }, { "text": "TYSON, Judge\nconcurring.\nI concur in the result of the majority\u2019s opinion.\nI. Facts\nOn 15 December 1998, Judge Dickson held a hearing on the petition to adjudicate the children abused and neglected. At the hearing, respondent, represented by Attorney William Brown, called the children to testify. Judge Dickson found that none of the children could testify because of the detrimental effect on the children to face their father. Respondent appealed. Attorney Brown also represented defendant on his first appeal to this Court. On 4 April 2000, this Court held:\nBecause the trial court applied an erroneous legal standard in denying respondent father\u2019s request to call the children as witnesses, we must reverse the adjudication order in this case and remand the matter to the District Court for a new hearing at which the competence of the children to testify, should they be called as witnesses, shall be determined in accordance with G.S. \u00a7 8C-1, Rule 601. In the event the children\u2019s mental condition does not render them incompetent to testify, and they are called as witnesses, the trial court shall take appropriate measures to mitigate, insofar as possible, any harmful effects to them of being required to testify.\nIn re Faircloth, 137 N.C. App. 311, 318, 527 S.E.2d 679, 684 (2000).\nMore than ninety days after this Court\u2019s mandate issued, DSS petitioned on 3 August 2000 for termination of respondent\u2019s parental rights without calendaring the hearing on remand on the petition to adjudicate the children abused and neglected. On 6 September 2000, respondent requested that William Brown be appointed his counsel for the termination of parental rights cases. This request was granted.\nOn 19 March 2001, Mr. Brown filed a motion for Judge Dickson to recuse himself claiming that: (1) Judge Dickson was the presiding judge over the abuse and neglect matter; (2) Judge Dickson\u2019s \u201cjudgment in [that matter] was overturned by the North Carolina Court of Appeals\u201d; (3) the matter was set for termination of parental rights on 23 March 2001; and (4) Judge \u201cDickson may have pre-conceived judgment in this matter.\u201d On 7 May 2001, Mr. Brown filed a motion to withdraw as counsel at the request of his client.\nNeither of these motions were calendared for prior hearing nor were the children subpoenaed to testify at the termination proceeding. Respondent has been incarcerated since 8 January 1998. He was brought from North Carolina Central Prison for the hearing on termination of his parental rights.\nAt the hearing, the trial court heard respondent\u2019s pending motions. Judge Dickson stated \u201cMr.. Brown, you have motions?\u201d Mr. Brown responded:\nYour honor, my first motion is for me to withdraw. Within the confines of this courtroom, in front of this judge, Mr. Faircloth has on many occasions expressed his displeasure with my representations, saying there\u2019s a conflict and that inadequate representation. I also received a letter from him on 5/19, and without breaching the lawyer-client privilege, it is simply, among other things, saying that he\u2019s displeased with my representations, that he feels that I am inadequately representing him, your honor.\nMr. Faircloth agreed there was a conflict of interest and stated: \u201cI asked this man to file motions. I asked him to file subpoenas. I asked him to do things that he should have been doing. He ain\u2019t even done \u2014 he ain\u2019t even tried to fight the case. Even on appeal, that I was supposed to have went before another \u2014 on another, a new trial. I ain\u2019t been to no new trial yet. That been over two, three years. That\u2019s my constitutional right, to have another trial.\u201d Judge Dickson denied Mr. Brown\u2019s motion to withdraw and ruled that the \u201cmotion to have Mr. Brown removed as counsel orally made by the Respondent Father is denied.\u201d Mr. Faircloth became angry and argumentative by this ruling.\nMr. Brown then presented the motion to recuse based upon respondent\u2019s belief \u201cthat [Judge Dickson] may have a preconceived idea as to how to rule on this case.\u201d Mr. Faircloth stated to Judge Dickson \u201cYou biased and you\u2019re prejudiced, and you need to get the f \u2014 k off my d \u2014 n case.\u201d In response, Judge Dickson stated \u201cThis Court has no preconceived opinions in this matter. This is a different matter from the matter previously heard by this Court. The motion to recuse is denied.\u201d Respondent became more argumentative and profane and was removed from the proceeding and transported back to prison.\nII. Motion to Recuse\nThe Code of Judicial Conduct provides in pertinent part:\n(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:\n(a) He has a personal bias or prejudice concerning a party. . . .\nCode of Judicial Conduct, Cannon 3(C) (2002). \u201cThe burden is on the party moving for recusal to demonstrate objectively that grounds for disqualification actually exist.\u201d State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993) (citations omitted) (internal quotation marks omitted). \u201cThe moving party may carry this burden with a showing of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially or a showing that the circumstances are such that a reasonable person would question whether the judge could rule impartially.\u201d Id. (citations omitted) (internal quotations omitted). \u201c[W]hen the trial judge found sufficient force in the allegations contained in defendant\u2019s motion to proceed to find facts he should have either disqualified himself or referred the matter to another judge.\u201d Bank v. Gillespie, 291 N.C. 303, 311, 230 S.E.2d 375, 380 (1976).\n\u201cBias or prejudice does not refer to any views a judge may entertain toward the subject matter involved in the case.\u201d Kennedy, 110 N.C. App. at 305, 429 S.E.2d at 451. \u201c[T]he fact that a trial judge has repeatedly ruled against a party is not grounds for disqualification of that judge absent substantial evidence to support allegations of interest or prejudice.\u201d Love v. Pressley, 34 N.C. App. 503, 506, 239 S.E.2d 574, 577 (1977), cert. denied, 394 N.C. 441, 241 S.E.2d 843 (1978).\nHere, the only allegations in support of respondent\u2019s motion to recuse is that Judge Dickson presided over the prior abuse and neglect proceeding which was overturned on appeal and that \u201cJudge John W. Dickson may have a pre-conceived judgment in this matter.\u201d Previously holding a hearing on abuse and neglect is not grounds for disqualification in the present action. Id. Without further allegations of bias or prejudice, the trial court did not err in denying respondent\u2019s motion to recuse.\nHI. Motion to Withdraw\nParents in a termination of parental rights action are guaranteed the right to appointed counsel if they are found indigent. N.C. Gen. Stat. \u00a7 7B-1109. \u201cAlthough the right of an indigent defendant to have competent counsel is unquestionable, cf. State v. Sweezy, 291 N.C. 366, 371, 230 S.E.2d 524, 528 (1976), an accused does not have the right to have the counsel of his choice appointed for him, nor the right to insist that his attorney be dismissed and new counsel appointed merely because the defendant becomes dissatisfied with the attorney\u2019s services. Id.\" State v. Tucker, 111 N.C. App. 907, 908, 433 S.E.2d 476, 477, disc. rev. denied, 355 N.C. 564, 439 S.E.2d 160 (1993). \u201cA trial judge is only constitutionally required to appoint substitute counsel when the initial appointment has not afforded defendant his constitutional right to counsel.\u201d Id.\nHere, Mr. Brown moved to withdraw as counsel for respondent based on the request of respondent. The trial court was not required to appoint substitute counsel in place of Mr. Brown. Judge Dickson specifically told respondent \u201cYou can either have Mr. Brown or you can proceed without an attorney. That is your choice, Sir. I am not going to appoint another attorney to represent you.\u201d Respondent did not request to proceed pro se; he stated: \u201cI wish to have me another attorney.\u201d The trial court did not err in denying the motion for Mr. Brown to withdraw as counsel for respondent.\nIV. Termination Hearing\nThe trial court found eight separate statutory grounds for termination. Respondent made a blanket assignment of error as to all of the findings and conclusions but failed to argue against four of the statutory grounds in its brief: (1) respondent leaving the children in foster care for a continuous period of 6 months immediately preceding the petition for termination being filed without paying a reasonable portion of cost of care although physically and financially able to do so, N.C. Gen. Stat. \u00a7 7B-1111(a)(3); (2) respondent willfully abandoning the children for at least six consecutive months preceding the filing of the petition, N.C. Gen. Stat. \u00a7 7B-1111(a)(7); (3) respondent being incapable of providing for the proper care and supervision of the child such that the children are dependent within the meaning of N.C. Gen. Stat. \u00a7 7B-101(9) and there is a reasonable probability that such incapability will continue for the foreseeable future, N.C. Gen. Stat. \u00a7 7B-1111(a)(6); and (4) the parental rights of respondent with respect to Amanda had been involuntarily terminated and respondent lacked the ability or willingness to establish a safe home, N.C. Gen. Stat. \u00a7 7B-1111(9).\nOnly one statutory ground need exist for a trial court to terminate parental rights. N.C. Gen. Stat. \u00a7 7B-llll(a). By failing to argue error in the findings or conclusions that these statutory grounds exist, respondent has abandoned these issues on appeal. N.C. R. App. R 10(a), 28(a).", "type": "concurrence", "author": "TYSON, Judge" } ], "attorneys": [ "David L. Kennedy for petitioner-appellee Cumberland County Department of Social Services.", "Susan J. Hall for respondent-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: JAMES DAVID FAIRCLOTH, JR., DAKOTA LEE FAIRCLOTH, AMANDA SUE LYNN FAIRCLOTH, and MARGARET IRENE FAIRCLOTH, Juveniles\nNo. COA01-1524\n(Filed 5 November 2002)\n1. Judges\u2014 termination of parental rights \u2014 same judge at prior abuse hearing \u2014 recusal not required\nThe trial judge did not err by not recusing himself from a termination of parental rights hearing where he had presided over a prior abuse and neglect hearing and had adjudicated the children abused and neglected (although that ruling was reversed and remanded on appeal).\n2. Termination of Parental Rights\u2014 pending remanded abuse and neglect hearing \u2014 not a condition precedent for termination hearing\nThere was no error where a trial judge held a termination of parental rights hearing without first rehearing a remanded abuse and neglect proceeding. Such a hearing is not a condition precedent for a termination hearing.\n3. Termination of Parental Rights\u2014 appointed counsel\u2014 effectiveness\nThe trial court did not err by not removing respondent\u2019s attorney from a termination of parental rights hearing where respondent claimed that his appointed attorney was ineffective, but did not show that his attorney\u2019s performance was so deficient as to deprive him of a fair hearing.\n4. Trials\u2014 removal of disruptive respondent \u2014 no abuse of discretion\nThe trial court did not abuse its discretion by removing respondent from a termination of parental rights hearing without providing a means for him to testify where respondent was profane and belligerent, refused to be affirmed prior to questioning, interrupted and argued, and was removed after a final warning from the judge.\n5. Termination of Parental Rights\u2014 failure to deny or present argument about certain grounds \u2014 only one ground needed\nNo prejudicial error was found in a termination of parental rights proceeding where respondent admitted some of the allegations in the petition by failing to deny them and did not present an appellate argument about some of the grounds for termination found by the court. Because the trial court needs to find only one of the statutory grounds for termination, any error in the remaining assignments of error was not prejudicial.\nJudge Tyson concurring.\nAppeal by respondent from order entered 26 July 2001 by Judge John W. Dickson in Cumberland County District Court. Heard in the Court of Appeals 15 August 2002.\nDavid L. Kennedy for petitioner-appellee Cumberland County Department of Social Services.\nSusan J. Hall for respondent-appellant." }, "file_name": "0565-01", "first_page_order": 595, "last_page_order": 611 }