In Re Faircloth

571 S.E.2d 65, 153 N.C. App. 565, 2002 N.C. App. LEXIS 1273, 2002 WL 31454787
CourtCourt of Appeals of North Carolina
DecidedNovember 5, 2002
DocketCOA01-1524
StatusPublished
Cited by44 cases

This text of 571 S.E.2d 65 (In Re Faircloth) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Faircloth, 571 S.E.2d 65, 153 N.C. App. 565, 2002 N.C. App. LEXIS 1273, 2002 WL 31454787 (N.C. Ct. App. 2002).

Opinions

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) [568]*568Faircloth 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 incarcerátion 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 [569]*569to 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 términation 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.

[570]*570The Code of Judicial Conduct provides in pertinent part:

C. Disqualification

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Bluebook (online)
571 S.E.2d 65, 153 N.C. App. 565, 2002 N.C. App. LEXIS 1273, 2002 WL 31454787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-faircloth-ncctapp-2002.