In Re Larue

440 S.E.2d 301, 113 N.C. App. 807, 1994 N.C. App. LEXIS 219
CourtCourt of Appeals of North Carolina
DecidedMarch 1, 1994
Docket9323DC180
StatusPublished
Cited by18 cases

This text of 440 S.E.2d 301 (In Re Larue) 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 Larue, 440 S.E.2d 301, 113 N.C. App. 807, 1994 N.C. App. LEXIS 219 (N.C. Ct. App. 1994).

Opinion

GREENE, Judge.

Ernest, 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. § 7A-289.32(7) (Supp. 1993) based on their “incapab[ability] as a result of their mental retardation of providing for the proper care and supervision of their children.”

Alleghany 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. § 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 “it would be in the best interest of all three juveniles to continue their legal and physical custody” with DSS. Judge Gregory also “recommended 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.” DSS subsequently filed a petition to terminate the LaRues’ parental rights based on neglect. At the hearing on this petition, the LaRues moved for Judge Gregory to recuse himself based on his earlier recommen *809 dation 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’ 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. § 7A-289.32(7).

The 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 “borderline range of mental retardation.” Dr. Phillip Batten (Dr. Batten), an expert in psychology, confirmed Tate’s earlier IQ findings and based on his interaction with the LaRues, classified them as falling “into the category of borderline functioning.” 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.

The issues presented are whether the trial judge erred in (I) denying the LaRues’ 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. § 7A-289.32(7).

I

The 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 “a personal bias or prejudice” concerning them. We disagree.

The Code of Judicial Conduct does state that a judge “should disqualify himself ... where ... [h]e 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) (1993). “The burden is on the party moving for recusal to ‘demonstrate objectively that grounds for disqualification actually exist.’ ” 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 *810 months earlier, had conducted a review hearing pursuant to N.C. Gen. Stat. § 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 “evidentiary facts” gained by the trial judge from the earlier proceedings does not require disqualification. We also reject the LaRues’ argument that Judge Gregory should be disqualified because he “recommended” that DSS pursue a termination of parental rights proceeding against them. Indeed, the trial court is required at a review hearing to evaluate “[wjhen and if termination of parental rights should be considered.” N.C. Gen. Stat. § 7A-657(c)(6) (1989). Therefore, Judge Gregory did not err in denying the LaRues’ motion for recusal.

II

The LaRues next argue that the evidence does not support that they are mentally retarded within the meaning of N.C. Gen. Stat. § 7A-289.32(7). We agree.

A district court can terminate parental rights if the petitioner shows by clear, cogent, and convincing evidence:

(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-517Ü3), and that there is a reasonable probability that such incapability will continue throughout the minority of the child.

N.C.G.S. § 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. § 7A-289.32(7) does not define the term “mental retardation.” Because, however, the language of the “statute is clear and is not ambiguous” it must be “implemented according to the plain meaning of its terms.” Hyler v. GTE Products Co., 333 N.C. 258, 262, 425 S.E.2d 698, 701 (1993). Dictionaries are properly used to ascertain the “plain meaning” or the “natural and ordinary meaning” 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 *811 term contained in other statutes, although not controlling, “throw some light upon . . . [its] normal usage.” Hatteras, 265 N.C. at 657, 144 S.E.2d at 824.

A medical dictionary defines mental retardation as follows:

Below 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.

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Bluebook (online)
440 S.E.2d 301, 113 N.C. App. 807, 1994 N.C. App. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-larue-ncctapp-1994.