NO. COA01-1524
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 eitherrecuse 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 the
trial court's 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. §
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. §§ 7B-1111(3), (5), (6) (2001). We
further note that N.C. Gen. Stat. § 7B-1102 allows parties tofile 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. § 7B-1102(a), (c) (2001). A review of N.C.G.S. §
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.
As he fails to advance any further argument to substantiate
his claim of personal bias or prejudice on the part of Judge
Dickson, Faircloth's first assignment of error is rejected.
In his next assignment of error, Faircloth contends the
trial court erred in not removing his attorney from the case. We
disagree.
N.C. Gen. Stat. §§ 7B-1101 and 7B-1109(b) guarantee a
parent's 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. § 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 assistanceof counsel, Faircloth "must show that counsel's performance was
deficient and the deficiency was so serious as to deprive [him]
of a fair hearing.”
In re Bishop, 92 N.C. App. at 665, 375
S.E.2d at 679.
Counsel 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's
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's
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's failure to do so resulted in prejudice
to Faircloth or denied him a fair hearing.
The record actually shows counsel objected at several points
during the testimony of the State's 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's criminal trial. Counsel also cross-examined the
State's prosecutor concerning the details of Faircloth's
Alfordplea. In sum, Faircloth fails to demonstrate that counsel's
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.
By 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.
The record shows Faircloth repeatedly disrupted the
proceedings. Following the denial of his attorney's motion to
withdraw and Faircloth's oral motion to remove counsel, Faircloth
told the judge, "You can't force me to have that man for my damn
attorney." He then argued with the trial court concerning the
judge's 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, "Take me
out of this motherfucker." 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's 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 thecourtroom if he used "one more bit of profanity." Faircloth
responded by yet again cursing the judge. The trial court then
stated:
All 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.
Following the presentation of DSS' case, counsel for
Faircloth attempted to call Faircloth as a witness. Faircloth
was not present and no steps were taken to secure his testimony.
A 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 “due limitations.”
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's 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
“rigors of the due process clause.”
Id. at 653, 414 S.E.2d at397. The
Mathews/Eldridge factors are: "[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."
Santosky v. Kramer, 455 U.S. 745, 754, 71
L. Ed. 2d 599, 607 (1982)
.
Analysis of the
Mathews/Eldridge factors shows Faircloth's
due process rights were not violated. The first factor, his
private interest, weighs against the trial court's decision to
remove him from the courtroom without providing a means through
which he could testify. The importance of a natural parent's
right to the care, custody and management of his or her children
cannot be denied and “[a] parent's interest in the accuracy and
justice of the decision to terminate his or her parental status
is, therefore, a commanding one[.]”
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.
However, the third factor, the countervailing governmental
interest, weighs in support of the trial court's decision. The
State has an interest in ensuring a fair hearing and a correct
decision and protecting the dignity of the courtroom
.
Faircloth's
conduct here severely disrupted the proceeding. He refused to
respond to the clerk's 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 verballyharassed 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's disruptive behavior prevented
a proper adjudicatory hearing and demonstrated contempt for
court.
The second
Mathews/Eldridge factor, the risk of error
created by the State's procedure, also weighs in favor of the
State. On this record, the risk of error created by Faircloth's
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's 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.
In 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 byFaircloth's 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.
By his remaining two assignments of error, Faircloth attacks
some of the grounds on which the trial court based its order
terminating his parental rights.
"There is a two-step process in a termination of parental
rights proceeding."
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. § 7B-1111
exists.
In re Anderson, ___ N.C. App ___, ___, 564 S.E.2d 599,
602 (COA01-885, filed 18 June 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 "clear, cogent and convincing" and
the "clear and convincing" standards.
Compare N.C. Gen. Stat. §
7B-1109 ("The 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.")
with N.C. Gen. Stat. §
7B-1111 ("The burden in such proceedings shall be upon the
petitioner or movant to prove the facts justifying such
termination by clear and convincing evidence."). These twostandards are synonymous.
In re Montgomery, 311 N.C. 101, 109,
316 S.E.2d 246, 252 (1984).
If 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, ___ N.C.
App. at ___, 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. § 7B-1110;
In re Blackburn, 142 N.C. App. at 610, 543
S.E.2d at 908.
Here, the trial court determined the following statutory
grounds for termination existed: (1) Faircloth abused Amanda
within the meaning of N.C.G.S. § 7B-101(1); (2) he neglected the
children within the meaning of N.C.G.S. § 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's 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 thechildren, such that they are dependent children within the
meaning of N.C.G.S. § 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. §
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. § 7B-1111(9).
In 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. § 7A-101(9),
and there is a reasonable probability that such incapability will
continue for the foreseeable future.
He 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's
cost of care although able to do so; and (3) that he willfully
abandoned the children for at least six consecutive months
immediately preceding the filing of the petition. The trial court need only find one of the statutory grounds
for termination. N.C.G.S. § 7B-1111(a). Furthermore, this
Court's appellate review is limited to those assignments of error
set out in the record on appeal and properly presented and
discussed in the party's 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's 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. §§ 7B-1107,
7B-1108(a) (2001). Accordingly, even assuming Faircloth's two
remaining assignments of error have merit, any such errors are
not prejudicial in this case since other substantial grounds for
termination were established.
We hold that the trial court did not err in failing to
recuse itself, did not err in failing to remove Faircloth's
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's order terminating
Faircloth's parental rights to the four children. Affirmed.
Judge MARTIN concurs.
Judge TYSON concurs in the result only.
============================
TYSON, Judge concurring.
I concur in the result of the majority's opinion.
II. Motion to Recuse
III. Motion to Withdraw
Parents in a termination of parental rights action are
guaranteed the right to appointed counsel if they are found
indigent. N.C. Gen. Stat. § 7B-1109. “Although 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's 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). “A
trial judge is only constitutionally required to appoint
substitute counsel when the initial appointment has not afforded
defendant his constitutional right to counsel.” Id.
Here, 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 “You 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.” Respondent did not request to proceed pro se; he
stated: “I wish to have me another attorney.” The trial court
did not err in denying the motion for Mr. Brown to withdraw as
counsel for respondent.